Abortionis a controversial issue that is debated in the legal, moral,religious, and ethical contexts. Although the issue of abortion hasbeen debated for several centuries, the stakeholders have not yetconcluded whether terminating abortion is legally wrong or right.Several courts have made contradicting decisions. The decision madein Roev. Wadeis one of the rulings that have been found to be inconsistent withthe constitution and other laws. The Roev. Wadecase was a class suit that was brought before the court by a pregnantwoman named Roe, who challenged the constitutionality of the Texasabortion law (Lawnix, 2015). The court ruled that the Texas abortionlaws were unconstitutional. The discussion presented in this paperwill show that the Supreme Court`s decision in Roev. Wadewas incorrect legally and constitutionally. The personhood, privacyand precedent of the case are the main areas of proof that the courtruling was wrong.
Thewrong legal precedent
TheSupreme Court used the wrong context of the previous rulings to favorits decisions. The ruling made in the case of Roev. Wadesuggested that women had the right to abort. The judges held that theprevious rulings sought to protect the health as well the life of thepregnant women. The court assumed that abortion is only held in amedical context, where the rights of the pregnant woman areprioritized over those of the fetus. However, it is evident that theprecedent set by the previous court cases took account of the rightof the unborn. In the case of Statev. Murphy,1858, the Supreme Court held that the life and the health of themother should be protected (Graber, 2000). However, the court addedthat the act of abortion was purged of its criminal nature as far asthe pregnant mother is concerned, but it should be considered as anoffense committed against the unborn child. Therefore, the SupremeCourt failed to read this ruling in its entirety and only focused onthe right of the pregnant women to terminate the pregnancy withoutbeing held criminally liable.
Similarly,the Supreme Court misinterpreted the precedence set in Smithv. Stateto show that the rights of a woman should be prioritized over thoseof the fetus. In Smithv. State,1851, the court held that a pregnant woman could be prosecuted incase she caused herself to perform an abortion or if someone elsecaused her to miscarry (Scaros, 2011). In this case, the court meantthat anyone (including physicians) facilitating the act of abortioncould be held criminally liable. This is inconsistent with thedecision of the Supreme Court in the case of Roev. Wade,where the pregnant woman was given the right to seek for medicalassistance to abort safely.
Theterm “personhood” is widely used in debates about abortion, wherethe stakeholders try to determine whether the unborn qualify to beconsidered as true persons. Judges in the Roev. Wadecase used the phrase “potentiality of human life” to imply thatthe unborn could only be considered as true humans in case they hadgrown enough to survive outside the womb (Lawnix, 2015). By thisstatement, the court implied that the unborn could only acquire thestatus of "personhood" after the third trimester. This isinconsistent with the common law that supports an idea that lifestarts at the point of conception. The common law states thataborting a fetus that has already been formed should be considered asquasi-homicide, which is a crime in the face of the law (DeMarco,2016). The common law does not distinguish between different stagesof fetus development, but it holds that the unborn acquire the statusof personhood soon after conception.
Similarly,the Supreme Court failed to acknowledge the fact that the tort lawhad already considered unborn as persons with legal rights. This hadbeen proven in the Allairev. Luke’s Hospital, 1896,where the court held that children had the right to take action forinjuries inflicted upon them while still in the wombs of theirmothers (Valparaiso University, 1978). In this case, a young boy suedthe hospital for the injuries he suffered when her pregnant motherfell in the hospital where he was delivered soon after the incident.This decision, which was founded on the law of tort, supported theidea that the unborn may be considered as separate persons from theirmothers. Therefore the decision made by the Supreme Court to givewomen the right the terminate pregnancy could be equated to murder ofa “person” under the tort law. Therefore, the decision made inRoev. Wadewas inconsistent with the provisions of tort and common laws.
Unconstitutionalityof a decision made in Roev. Wade
Anydecision made by the court should be consistent with the provisionsof the existing constitution for it to be considered as a validruling. The court’s interpretation of the concept of “right toprivacy” as provided by the constitution was mistaken. When readingthe opinion of the majority, Justice Harry Blackmun stated that theprinciple of liberty, which was protected by the Fourteenth Amendmentunder the Due Process Clause, was sufficiently broad to encompass thewomen’s right to abort (Lawnix, 2015).
Thejudges had the right to choose between the broad and a narrowinterpretation of the constitution, but their understanding of theconcept of privacy contradicted the history of the U.S. abortionlaws. The process of ratifying the 14thamendment coincided with the endorsement of several state laws thatprohibited abortion. These state laws remained in force by the timethe 14thamendment was ratified in 1868 (Valparaiso University, 1978). It wasabout one century, when Roe struck down the state laws. The framersof the U.S. constitution did not provide express right to privacy andabortion, but the Supreme Court took responsibility to consider themas implied rights. The U.S. had an established history of protectingthe privacy of its citizens, but it did not have a record ofdefending abortion. This implies that the framers of the 14thamendment did not intend to include the right to abort in theconstitution as the Supreme Court held in Roev. Wade.Therefore, the ruling had no constitutional basis.
Thedecision made by the Supreme Court in the case of Roev. Wadewas incorrect legally and constitutionally because it involved themisinterpretation of the legal application of the concepts ofpersonhood and the right to privacy. In addition, the judges made thewrong use of the precedent set in the previous cases. The rulingsmade in the previous cases (such as Statev. Murphy)had indicated that abortion was a crime by the time Roev. Wadewas concluded. Moreover, the tort law and the common laws acknowledgethe personhood of the fetus. By supporting abortion in the Roev. Wade,the court failed to appreciate the fact that a fetus is a “persons”capable of being killed through abortion. Additionally, themisinterpretation of the 14thAmendment made the ruling unconstitutional. Therefore, the rulingmade in Roev. Wadewas inconsistent with the constitution and other laws.
DeMarco,D. (2016). The Roman Catholic Church and abortion: An historicperspective. TrinityCommunications.Retrieved June 4, 2016, fromhttp://www3.nd.edu/~afreddos/courses/43151/demarco-part2.cfm.htm
Graber,M. (2000). Rethinkingabortion: Equal choice, the constitution, and reproductive politics.Princeton, NJ: Princeton University Press.
Lawnix(2015). Roev. Wade:Case brief summary. Lawnix.Retrieved June 4, 2016, fromhttp://www.lawnix.com/cases/roe-wade.html
Scaros,E. (2011). Understanding the constitution. Burlington: Jones &Bartlett Publishers.
ValparaisoUniversity (1978). Personality in Illinois prenatal tort law.ValparaisoUniversity Law Review,12 (3), 603-616.