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In 1965 the United States Supreme Court decided the case of Griswold v. Connecticut, which held that the 14th amendment’s due process clause implied a fundamental right to privacy and overturned the Connecticut law. This was the first recognition by the Supreme Court of a constitutional right to privacy. But it has withheld court challenges ever since.
So, along comes Roe v. Wade in 1973, in which the Supreme Court had to decide whether a woman’s right to privacy is outweighed by the due process clause, which gives an unborn child a right to life. So then, you had all the debate about when an unborn child is viable and deserving of due process protection, and so on.
I think the Texas criminalization of the activities of abortion clinics will probably not withstand constitutional challenge on a number of grounds—primarily because it empowers individuals to picket clinics, with the result that many women are afraid to access clinics in Texas and often travel miles to other states that still allow legal abortion
A Mississippi law that bans abortion outright has put the Supreme Court in a tight spot—does the due process right of a viable fetus of a right to life outweigh a woman’s right of privacy?
The Los Angeles Times had a cover story about this very issue on December 2 [“Supreme Court justices sound ready to restrict the right to abortion”]. It’s really quite important. The news story in the Times described the various views voiced by the Justices on oral arguments. They quoted Justice Sotomayor as saying that the court would not “survive the stench that this creates in the public perception” if it overturned Roe vs. Wade. This is a very powerful statement from a Supreme Court Justice who usually withholds comment until a formal court decision is drafted. Experts say that such a decision will probably not be out until June. The Court has a tough choice.
I’ve read also that conservatives have been pushing this issue for years and that they were helped by Trump’s appointment of a number of the most conservative justices. Ironically, conservatives believe that the Supreme Court should follow precedent, but now are arguing that it shouldn’t. And the right-to-lifers have been pushing for this for ten years, so they got what they wanted when we elected Trump and he got his Supreme Court appointments: enough conservative justices to overturn Roe v. Wade.
I think the Texas criminalization of the activities of abortion clinics will probably not withstand constitutional challenge on a number of grounds—primarily because it empowers individuals to picket clinics, with the result that many women are afraid to access clinics in Texas and often travel miles to other states that still allow legal abortion
A Mississippi law that bans abortion outright has put the Supreme Court in a tight spot—does the due process right of a viable fetus of a right to life outweigh a woman’s right of privacy?
The Los Angeles Times had a cover story about this very issue on December 2 [“Supreme Court justices sound ready to restrict the right to abortion”]. It’s really quite important. The news story in the Times described the various views voiced by the Justices on oral arguments. They quoted Justice Sotomayor as saying that the court would not “survive the stench that this creates in the public perception” if it overturned Roe vs. Wade. This is a very powerful statement from a Supreme Court Justice who usually withholds comment until a formal court decision is drafted. Experts say that such a decision will probably not be out until June. The Court has a tough choice.
I’ve read also that conservatives have been pushing this issue for years and that they were helped by Trump’s appointment of a number of the most conservative justices. Ironically, conservatives believe that the Supreme Court should follow precedent, but now are arguing that it shouldn’t. And the right-to-lifers have been pushing for this for ten years, so they got what they wanted when we elected Trump and he got his Supreme Court appointments: enough conservative justices to overturn Roe v. Wade.
One final irony: The same people who say that women should not have the right to choose what to do with their bodies are the same people who resist Covid-19 vaccine mandates on the grounds that they interfere with their rights to choose what they want to do with their bodies!
Like many other things that seem to bedevil our political life, this too can all be laid at the hands of Donald J. Trump.
| Copyright © 2021 by William Silveira |
Thanks, I really appreciate William Silveira's discussion of the underlying legal tension between a woman's right to privacy (and therefore to her body), based on the due process clause vs the right of the unborn child to life, which is also based on due process protection.
ReplyDeleteAssuming that the woman's life is not threatened by the pregnancy, maybe Judge Silveira can explain how the Court concluded that a perfectly viable child, in utero, should lose its life at the convenience of a woman's privacy? I have always supported a woman's right to choose. Now I'm not so sure. I am intellectually quite certain that the 13-week-old child that I see in the ultrasound is a living human being. The arguments to the contrary seem a medical and judicial sophistry. This is not religion, it's science and common sense. As a Libra I find myself sympathetic with both sides of the argument. What would King Solomon say?
Neil,
DeleteWho deserves the most protection, an unborn 13-week old fetus, or a 15-year-old teen or a 30-year-old woman who finds herself pregnant against her wishes? Why should the unknown feelings of an unborn 13-week old fetus matter more than the known feelings of a teen girl or an adult woman? If society forces that teen or woman to have a child she doesn't want, and has no interest in raising, what positive comes from that?
Bottom line: Teen boys and grown men don't have to worry about becoming pregnant and they have no clue what turmoil an unwanted pregnancy might create for a woman, so why should men even have a voice in a woman's choice? Men can use a condom or have a vasectomy; if they don't, and if their sex partner becomes pregnant, why should a male have any say at all in what decision a female makes?