In anticipation of starting law school in the fall, I’ve been reading famous US Supreme Court decisions. Have you ever read the ROE v. WADE, 410 U.S. 113 (1973) decision? It is more interesting than I would have thought. Not only did the court look at the history of restrictions on abortion dating back to the Greeks and Romans including an analysis of the The Hippocratic Oath, they defined the idea of “personhood” and determined that the Ninth and Fourteenth amendments implied privacy rights extend to abortion, but only up to a point.
Definition of Personhood
The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” All three refer to a person after live birth. “All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn” (Title IX).
The Rights of Privacy Extend to Abortion
“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.” (Section VIII)
Limitations on the Right to Privacy in Relation to Abortion Rights
“The right of privacy is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant (Section VIII).”
Laws restricting abortion are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century. Even the official dogma of the Roman Catholic church followed Aristotle’s theory of ”mediate animation” through the mid 19th century. Mediate animation is based on the beliefs of early philosophers that the embryo or fetus did not become formed and begin to live until at least 40 days after conception for a male and 80 to 90 days for a female … Aristotle’s thinking derived from his three-stage theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at “animation,” and the rational soon after live birth. This theory, together with the 40/80 day view, came to be accepted by early Christian thinkers.
The court ruled that a pregnancy is stages where the fetus has become viable, approximately after the first trimester, is at a point wherein the state does has an interest in promoting its interest in the health of the mother and may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health (emphasis mine).
Overall, Roe v. Wade is much more substantial than it is generally given credit for. The idea that abortion was not considered illegal or immoral before quickening for most of the history of the world until the 1850s is astounding. The members of the court had to tackle issues of history and medicine and constitutional privacy rights and come to a conclusion that was in accordance with the constitution, regardless of the popular opinion.
Kimberly is a law student at the University of Denver Sturm College of Law. When not studying or writing, she can be found devouring video games and books. She is commonly caught muttering under her breath a critique of the consumeristic mechanism that constantly insists on bombarding her personal space.