Roe V Wade - The Unconstitutional Decision
Carolyn By Carolyn Gargaro
Rightgrrl Co-Founder
February 3, 2000
Updated February 5, 2000
The opinions stated in the following article are mine, however, I would like to thank James Goettel for helping with the relevant legal arguments, to ensure the legal accuracy of this article!

Roe v Wade is undoubtedly one of the Supreme Court's most controversial decisions. Handed down in January of 1973, the Court declared, by a vote of 7 to 2, that abortion was a right guaranteed by the Constitution under an implied right to privacy.

Justice Harry Blackmun, the author of the majority opinion, stated that the Constitution does not explicitly mention a right to privacy but, "in varying contexts the Court or individual justices have, indeed, found at least the roots of that right." The right to an abortion was then considered an extension of this privacy right. As Blackmun stated,"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This decision made it unconstitutional for any state to restrict abortion in most circumstances.*

Because of this decision, I continually hear pro-choice advocates claim that my, and other's, opposition to Roe is uninformed and misplaced, since Roe gave women a "constitutuinal right" to an abortion. However, Roe v Wade, the very case which made abortion a constitutional right, is in fact, not based in the Constitution. The Court's decision is riddled with contradictions, law-making decisions (which the Court is not supposed to do), and rather strange Constitutional interpretations.

Let's start with the Fourteenth Amendment -- how does it supposedly relate to Roe? The Fourteenth Amendment deals with procedural limitations regarding life, liberty, and property. While we are guaranteed such rights without government interference, the government can indeed infringe upon our life, liberty or property as long as it gives notice and an opportunity to be heard. This amendment was also used to extend the Bill of rights to states as well as Congress, but it was not intended to add concrete rights to the Constitution. Nowhere, in fact, does the Constitution mention privacy, which is invaded by any government action and certainly any criminal statute. So where do privacy rights come from?

In 1965, a person named Griswold challenged an essentially dead and unenforced Connecticut law which made it a criminal offense for a married couple to buy contraceptives. However, since appellate courts will not hear challenges to statutes in the abstract, someone had to actually be arrested for violating the law for the law to be challenged. In what some say was a scenario set up specifically to challenge and overturn this law, Griswold was convicted of buying contraceptives and fined. Griswold could then challenge the constitutionality of the statute on appeal.

In the case of Griswold v. Connecticut, the Supreme Court struck down this Connecticut law, holding that the Constitution actually created substantive rights which were so "fundamental to the principles of liberty" that they could not be restricted by government. The Constitution does not mention contraception or privacy, but the Court declared that the other rights in the Constitution contained a "penumbra" of implied rights, and the general right to privacy was determined to be one of these rights. The statute prohibiting use of contraceptives was then voided as an infringement of the right of marital privacy

This right of privacy was developed from the First, Third, Fourth and Fifth Amendments. A concurring opinion cited the Ninth Amendment ("The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people") to support the assertion that the Constitution protects certain penumbral rights, despite the lack of a specific provision in the Constitution. ** Griswold was the first case that created a right relating to reproduction without naming a specific clause in the constitution.

But how would the Court determine these unmentioned, yet constitutional, >rights? The Court decided that the Constitution must evolve, and that the Court was free to consider current public opinion when deciding whether a right was sufficiently "fundamental" to deserve constitutional protection.

So, in summary, the Court in Griswold decided that:
  1. There are unmentioned, yet fundamental rights within the Constitution
  2. The lack of a specific mention of a certain right doesn't mean it does not exist.
  3. These unmentioned, fundamental rights, can not be restricted, and the 14th Amendment applies this restriction to the states.
  4. The "right to privacy" was one of these rights which is not mentioned, but implied within the Constitution.
Now, back to Roe. Blackmun decided that a "right of personal privacy...does exist under the Constitution" and this personal privacy "right" creates a limited right to have an abortion, especially in the first trimester when the fetus was not viable. Blackmun found that the state interest in protecting life did not override the limited right to an abortion until third trimester, when the fetus is most certain to be a viable person; since 90% of abortions occur in the first trimester, abortion became an almost total "constitutional right." Remember: this opinion was not grounded in any constitutional text, but instead on one broad interpretation after another. Blackmun also cleverly used the word "under" as opposed to "in" when referring to the privacy right, and only claimed it to be a limited right (balanced against the state interest) to somewhat mask the fact that the actual text of the Constitution does not support the Court's opinion, and even the Griswold decision did not go as far as allowing an abortion. Blackmun could not use the rationale of Griswold; Justice White, who was in the majority in Griswold, did not believe that abortion was private in the sense that contraception was. Three new court appointees, moreover, disagreed with Griswold. So Blackmun argued that the 14th amendment words "due process" went further than the penumbra of the Bill of Rights, and created rights "implicit in the scheme of ordered liberty". From this, he developed a limited right to an abortion.

It's debatable whether there is indeed an implied right to privacy in the Constitution, but regardless of one's opinion on that, it seems tenuous and irresponsible of the Court to expand this right to the right to terminate the life of the unborn. After all, the right to privacy doesn't expand to many other areas in a woman's life, but somehow, without specific justification, it extends to the right to have an abortion? In addition, the idea that the right to an abortion is a "constitutional" right begs the question: are there then constitutional rights that apply only to certain groups of people? After all, this "right" to abort certainly does not extend to men, so does this mean that women have fundamental rights that men do not? Should men then, have a Constitutional right that applies to them, but excludes women? What other rights beside privacy are "implied" by the Constitution, if any? And what is "private" about an abortion--is it any more private than infanticide? Is there any government intrusion that does not invade privacy? Many jurists, including Justice Ginsburg, have already hinted that a better argument would be the equal protection clause; criminalizing abortions penalizes only women, since only women become pregnant, and forcing her to carry the child to term without just compensation would be (argualby) and unconstitutional burden. But the gender issue (as I have noted) can be argued the other way also, and was never discussed in Roe or Griswold.

One might also argue that the earlier decision to consider public opinion in determining these unmentioned rights aided in the decision to extend privacy rights to cover abortion, but aside from the fact that the climate in 1973 did not strongly support a Constitutional right to an abortion,*** even if people were clamoring for a constitutional right to abort, the idea that the Court decides how to interpret the Constitution on what they deem to be "popular opinion" contradicts the original purpose of the Bill of Rights. The Bill of Rights detailed fundamental rights, and judicial review (the power of the Court to overturn acts of Congress, as established in Marbury v. Madison (1803)) helped ensure that these rights were extended to all people. Without such review, it would be possible for the majority to vote to infringe on the fundamental rights of a political or religious minority. Public opinion is relevant to deciding what the states meant when they ratified amendments; for example, libel laws are considered constitutional because states had them when they ratified the 1st amendment, and thus the people did not intend free speech to cover knowingly false statements. The Constitution has a procedure for adding amendments, and if public opinion supported abortion rights, the people (through their elected officials) could add such an amendment (public opinion regarding women's rights almost led to ratification of the ERA at about the same time as Roe). But the Court in Roe usurped this prerogative and, citing "public opinion", amended the constitution by creating a right that most constitutional scholars agree does not exist. The Supreme Court is actually supposed to protect people FROM majority opinion; for example, it will uphold unpopular demonstrations as protected free speech, or protect suspected criminals from a biased trial.

In addition, prior to 1973, the Court had always used liberty as a legal term, but in Roe, liberty was described in psychological, sociological, and economic terms. "The unwanted child," Blackmun avowed, would cause a woman psychological stress, and impose family responsibilities and economic hardships. He therefore concluded that the woman had a "liberty interest" protected by the Fourteenth Amendment.

The problem with defining liberty in such a way seems obvious wanting psychological stress or the imposition of family responsibilities be applied to any number of situations? Couldn't a born child, or even a difficult relative also interfere with this definition of "liberty"?

The argument for such examples would be that obviously, someone's privacy right wouldn't override the right of someone to live, since such an application would allow for the abuse of others, so long as it was done in private. Ah, but the Court got around this too, by labeling the unborn as less than fully human, and asserting that the Constitution only protects "post-natal" life. This meant that the state could not weigh the child's privacy right against the mother's, only the state interest in protecting potential life.

First, it would seem apparent that the unborn was not specifically mentioned at the time because the framers of the Constitution did not have adequate medical knowledge to know what we do now about the biology of the unborn; or, they assumed that it would be clear that the unborn was covered, since they didn't deem it necessary to specify that each stage of a person's development was constitutionally protected. The Court seemed perfectly content to ignore these very real possibilities, and placed the liberty of the woman above the unborn's right to live.

Secondly, The Ninth Amendment, which the Court used to justify their position in Griswold, ironically, directly contradicts this decision. As discussed earlier, the Ninth Amendment states that "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." The word retain, designates that the rights expressly guaranteed by the constitutional text should not be interpreted so as to deny rights not specified, but that preexisted in the Constitution. One would assume that the Court would have questioned whether the "right" to terminate a pregnancy would "deny or disparage" a right "retained" by the people. Had the Court questioned this, its distinction between "potential" and "full" human life would have been seen as an obvious violation of the right to life.

The right to life? Yes, the right to life - ever heard of that? It's one of those unalienable rights that's mentioned in the nation's charter, the Declaration of Independence. The Declaration of Independence states that "all men are created equal" and are endowed by their Creator with the certain unalienable rights, one being the right to life. The Declaration is clear that this right belongs equally to all human beings. Thus, under this definition of the right to life, there can be no distinction based upon whether human life is "potential" or full. Yet, that is the core distinction of Roe v Wade, and it directly contradicts the right to life retained by the people according to the Ninth Amendment! So ironically, the Ninth Amendment was used to justify a newly found, unmentioned right to privacy that magically extends to the right to abort, when in fact, denying the unborn rights based on the fact that the unborn is inside, rather than outside the womb, contradicts the Ninth Amendment! In addition, the Court used the Ninth Amendment to justify this unmentioned right to privacy, yet then turned around and denied the unborn rights because the unborn child was not specifically mentioned! So how can we say that we have a constitutional right to privacy that extends to abortion even though it is not mentioned in the Constitution, and then turn around and deny rights to another human because the unborn wasn't specifically mentioned!? Roe actually extended this nonexistent right, saying the 14th amendment went even further than the Bill of Rights.

It gets better. Justice Blackmun also cites the "fact" that "the unborn have never been recognized in the law as persons in the whole sense" to justify denying rights to the unborn. First, that "fact" is not accurate. The unborn child was, and is still treated in certain tort and negligence law as a person. Secondly, we seem to be going back in time a bit, when we arbitrarily decided that some people are not "full persons."

Recall the 1857 Dred Scott v. Sanford decision, which declared that slavery could not be prohibited by Congress in any territory of the U.S. and that African Americans were not full persons and not afforded the same rights as "full persons." Sound familiar? President Lincoln argued that the slaves were persons, not possessions, and that their unalienable right to liberty was protected by the Declaration of Independence unborn. To add to the irony, after the Emancipation Proclamation in 1863, came the Thirteenth (1865) and Fourteenth (1868) Amendments, all which overthrew slavery and the erroneous Dred Scott Supreme Court decision. The Fourteenth ironic. One of the Amendments which helped overturn Dred Scott is now used to further the "non-person" argument -the same argument the Amendment was created to prevent! How can the Supreme Court use the Fourteenth Amendment to help justify denying the unborn unalienable rights when this Amendment was supposed to protect people from such selective rights attribution? It would seem obvious that the framers of the Fourteenth Amendment implicitly included the unborn child in the due process and equal protection clauses of the Fourteenth Amendment.

It's about at this point that someone is bound to jump up and proclaim "Ah! This Amendment mentions citizens and the unborn isn't a citizen until birth, so this does not apply to the unborn!" Not quite, since the Fourteenth Amendment states that the State shall not deprive any person, not just citizens, life, liberty, or property without due process. In addition, the idea that the life of a non-citizen is not protected based solely on his/her non-citizen status is rather absurd, since that would mean that a born, non-citizen, could be deprived of life, liberty or property without due process. The Court can only argue that the fetus is not a person; but then why is there sufficient state interest in the third trimester to outlaw abortion? Why are they sure, by the third trimester, that it is a future person, but not in the first? What is the medical basis for this? What happens as medical advances secure the health of the fetus at an earlier stage? What if the fetus, though still in the womb, is viable? Why do 50 states consider it homicide to kill an infant one minute AFTER it is removed from the womb?

Blackmun states that "the unborn have never been recognized in the law as persons in the whole sense alone" to justify abortion up until the precise moment that the infant leaves the womb. Blackmun believed that the unborn have never been recognized by the law, but he later states in Roe that "at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant" over the woman's "right to privacy"? To try and get around this contradiction, Blackmun created "trimesters" which gave some protection to the unborn in the later stages of pregnancy.* By doing this, Blackmun contradicts himself yet again, since he also stated in Roe that "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." So, Blackmun states that the judiciary should not speculate as to when life begins, and then precedes to do just that as he defines levels of fetal protection based on trimesters.

Not only is Blackmun's definition of trimesters a contradiction of Blackmun's other statements, but it goes against what the Supreme Court is supposed to do. The Supreme Court is not supposed to create laws - the Court is supposed interpret the Constitution, but not legislate from the bench. Article VI, Section 2 of the United States Constitution lists three things as "the supreme law of the land": (1) This constitution; (2) The laws of the United States which shall be made in pursuance of it; and (3) All treaties made, or which shall be made, under the authority of the United States. Court decisions are not mentioned. Court opinion was, and is now seen as only "evidence of law." Thus, a Supreme Court decision can be overturned by a subsequent Supreme Court decision if is later deemed that the interpretation was incorrect. For instance, Abraham Lincoln refused to accept the Supreme Court's decision in Dred Scott as the law of the land, vocally denounced it, and eventually it was overturned by amendments to the Constitution. So, when Blackmun arbitrarily decided when a fetus becomes "potential life" that may be protected by the state, and what restrictions the state can or cannot place on abortions, he is creating laws, which is not one of the jobs of the Supreme Court. It is clearly a state function to determine when life begins.

Ridden with contradictions and highly debatable constitutional decisions, I hope that one day Roe v Wade is chalked up, just like Dred Scott v Sanford, as one of the grievous errors of the Supreme Court, and overturned. Until then, it seems as if the discrimination will continue against those who are unable speak for themselves - the type of discrimination the Constitution should fight against, not justify.

*Abortion restrictions were broken down by trimesters
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (see Roe V Wade)

While restrictions could be placed on third trimester abortions, such restrictions can be circumvented due to Doe V Bolton, (Jan 22, 1973), which decided that abortion is constitutionally protected whenever it is necessary to protect a woman's health. "Health" is defined to include "all factors -- physical, emotional, psychological, familial, and the woman's age". (see Doe V Bolton)

** I realize there are some who will debate this interpretation of the Ninth Amendment, since many believe that this is not the correct interpretation. Whether this interpretation is correct or not though, doesn't change the fact that it was misapplied in this case. If the interpretation used in the article is incorrect, then it is obviously erroneously applied in Roe v Wade. However, if it is correct, the Amendment is still misapplied, as is explained in the article.

*** At that time, abortion was completely illegal in 33 states except when necessary to save the life of the mother. The remaining 17 states allowed abortion in various circumstances. The most permissive, New York, allowed abortion for any reason up to 24 weeks, though New York did not allow third trimester abortions for "emotional health" as required by the Supreme Court.

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This article copyright © 2000 by Carolyn Gargaro and may not be reproduced in any form without the express written consent of its author. All rights reserved.

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