This coming January 22nd marks the 39th anniversary of the landmark Roe v. Wade decision, in which the Supreme Court ruled that states cannot invade the privacy rights of any woman who wants an abortion during the first trimester of pregnancy. The Court also declared that states do have an “important and legitimate interest in protecting the potentiality of human life.”
States do, though, have the right to regulate abortion to varying extents in the second and third trimester. As states across the nation are calling for stricter abortion laws, and even outright bans in some cases, the constitutionality of Roe must continue to be discussed.
Many who advocate for these additional bans cite religious and moral reasons for their opinions, but major legal questions are also present. The fact that the entire case was based on a lie from its beginning aside, Roe should be overturned because of other major inconsistencies.
The opinion of Justice Blackmun did not make the Court’s understanding of a right to privacy clear (and the Constitution never mentions the word "privacy"). Blackmun acknowledged that the Constitution does not define what constitutes a “person,” but he then attempted to define “person” by limiting abortion to only two of the trimesters. He effectively declared that states can only protect "personhood" after the first trimester, meaning "personhood" in the first trimester either doesn't exist or shouldn't be protected.
Even if we ignore the great likelihood that cells in a pregnancy will eventually gain personhood, and abortion reduces that likelihood to nothing, many people believe "personhood" begins long before the second trimester based on their religious convictions. Yet, the U.S. government here says they are incorrect, infringing on First Amendment rights by creating a law establishing a belief formerly reserved to religious debate. The trimester system was later replaced by fetal "viability" in Planned Parenthood v. Casey, but the same personhood argument applies.
Justice White, in his dissenting opinion, also points out that the Court's decision imposes priorities on people, giving the mother's right to privacy greater weight than the development of potential life. If the people of any state, through their elected legislature, choose to order their priorities in another way, the Supreme Court should not dispute them. The Court assumed legislative powers it did not have to, legalizing a practice that the people had already outlawed (to varying degrees). This decision prevented the popular movement to end abortion and place greater value on human life; instead, it fostered a culture of killing. The people realized that "personhood" includes men and women of all races, so they adopted the 13th Amendment. The Supreme Court does not have the right to stop the people from realizing personhood includes the unborn.
It is my hope that we as a nation find common moral ground in determining to rid ourselves of the necessity of abortion by instilling in ourselves and our posterity a greater sense of responsibility in the choices we make. Simply legislating abortion out of existence will surely be met with vehement opposition, but smaller legislative steps coupled with a greater moral movement could eventually render this conversation a moot point.
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