Clinton, Trump and Wallace Fumbled the Abortion Question/ Supreme Court Discussion

It appears both Hillary Clinton and Donald Trump and the media (Chris Wallace) know very little if anything about the legal parameters pertaining to the alleged “constitutional right” to an abortion.

This conclusion is based on the discussion pertaining to the candidates’ position on abortion set forth in last night’s debate. The same is true for the main stream media and their “puppet” hosts, authors and pundits who defend Planned Parenthood. In short they don’t know enough to know what they don’t know.

Roe v. Wade, 410 U.S. 113 (1973), ruled that an illusionary right to privacy existed under the “penumbra” of the Due Process Clause of the 14th Amendment. A decision that has been criticized by many constitutional scholars on both sides of the aisle. This granted a limited right to a woman to have an abortion. Judge Blackmun held there is a broad right of privacy, although not explicitly set forth in the Constitution, that lurks in the “penumbras and shadows” of the Bill of Rights. This right of privacy allegedly grants women a right to have an abortion. Really? Contrary to popular belief, the Bill of Rights is not a positive grant of rights to the citizens, but a negative Bill of Limitations on what the Federal Government may not do, namely interfere with the rights retained by the states under the Tenth Amendment of the Constitution.

This alleged “right of privacy” to an abortion is not absolute.

The court placed limitations on this right by balancing it against a state’s legitimate interest in regulating abortions to protect women’s health, and protect the potentiality of human life at a stage in the embryonic development when the fetus acquires viability, specifically, the ability to sustain life outside the womb even with artificial aid. When the embryo acquires viability it acquires independent and protectable Constitutional rights as a “person” under the 14th Amendment. The recognition of a viable fetus as a person dilutes the woman’s alleged sole right to have an abortion.

The rights of the fetus are separate and distinct from the mother’s rights under the 14th Amendment. The court argued that the state’s interest to protect the fetus became stronger over the course of a pregnancy as the fetus acquires viability. The Court resolved this balancing test by tying state regulation of abortion to an arbitrary standard linked with the third trimester of pregnancy. This was based on the medical and scientific knowledge pertaining to embryology known in 1972.

The Court recognized that the state had a legitimate interest in protecting the health of a pregnant woman. Justice Blackmun’s decision laid out a framework in which varying degrees of state regulation was permitted based on the stage of the pregnancy. The decision in Roe v. Wade held the state could not prohibit an abortion in the first trimester of pregnancy, in the second trimester states could issue laws that are “reasonably related to the woman’s maternal health”, and in the third trimester, once the fetus is viable beyond the womb, the state could regulate or even prohibit abortion except in cases “where it is necessary, in appropriate medical judgement, for the preservation of the life or health of the mother”.

The case Doe v Bolton, decided the same day as Roe v Wade, held that state restrictions on abortion in the second and third trimester must provide an exception “for the preservation of the life and health of the mother”. Later, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court rejected Roe’s rigid trimester framework. While affirming its central holding that a woman has a right to an abortion until fetal viability, namely, when the fetus was capable to live outside the mother’s womb, even with artificial aid (a standard requiring expert testimony and evidence from the medical sciences dealing with embryology), the state could regulate the process of obtaining an abortion so long as it did not create an undue burden on the woman seeking an abortion. In addition to acknowledging that embryonic viability may occur at 23 or 24 weeks, or sometimes even earlier, the court held that certain conditions (a woman’s informed consent including providing the woman with information on fetal development, medical risks of an abortion and childbirth; a twenty-four hour waiting period, and written consent from one parent when a minor seeks an abortion with a judicial by pass option) were reasonable and constitutional.

The advances made in the study of embryology and other related scientific fields since the decisions in Roe and Casey create a rebuttal presumption that embryo viability may be earlier than the arbitrary standards set forth in Roe and Casey, thereby limiting the women’s erroneously perceived absolute right to an abortion. This will concurrently increase the fetus’ right to be recognized as a person under the 14th amendment to the Constitution. This also grants the states greater flexibility in setting standards for the lawful performance of an abortion to balance the alleged penumbra of a woman’s right of privacy to seek an abortion against the right of a viable fetus to “life, liberty and the pursuit of happiness”. Advances made in the study of embryology since Roe v Wade was decided raises significant questions as to when a fetus is viable, and therefore acquires separate and distinct constitutional rights as a “person” that the state may protect with appropriate legislation. This is the main reason why advocates of the illusionary broad right to an abortion do not want the Supreme Court to revisit and possibly reverse or further limit the decision in Roe v. Wade.

Regards,
Jim “the Deplorable” Fuscaldo
Cedar

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