About That Roe v Wade

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

fuscaldoIt 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.

Jim “the Deplorable” Fuscaldo

You Betcha! (9)Nuh Uh.(1)

Jim Fuscaldo

James Fuscaldo is a retired attorney with degrees in law and science. He has a Bachelor of Science in Pharmacy from Drake University in Des Moines, Iowa, and a Juris Doctorate in Law from John Marshall Law School in Chicago, Illinois. He was employed by Broadlawns Polk County Hospital in Des Moines, Iowa; Eli Lilly and Company, Indianapolis, Indiana; Northwestern University Medical School, Chicago, Illinois, and The Dow Chemical Company, Midland, Michigan before retirement. He had been actively engaged in the following areas of the law during his 30-year legal career with The Dow Chemical Company. International Law. ( European Economic Community and Latin America) Intellectual Property Law. Commercial Business Law, including compliance with Federal Antitrust and Unfair Competition Laws. Federal Bankruptcy, Mergers and Acquisitions. Federal, Food, Drug and Cosmetic Law and compliance with Federal Trade Commission Regulations. Product liability litigation pertaining to prescription and nonprescription drugs. James served as General Counsel for Dow Chemical Latin America and General Trademark and Copyright Counsel for The Dow Chemical Company and was a member of Dow’s corporate legal management and supervisory team before retirement from Dow. In 2013, he received a Constitutional Defender Award from the Constitution Celebration Committee, and has been active in local politics in Northwest Michigan for several years. 


  4 comments for “About That Roe v Wade

  1. Sue Schwartz
    October 22, 2016 at 7:45 am

    Thank you "The Deplorable" Jim. Roe v Wade was a backdoor slippery slope which gave rise to government over-reach the likes of which we are seeing now. Silly clueless Feminists--while they believe Roe gives them "woman health freedom" as if this is some sort of protected class--or some right to privacy, that was newly gained under Roe, just the opposite is true.
    What it really did is took MY right to "Life, Liberty and Pursuit of Happiness".

    You Betcha! (3)Nuh Uh.(0)
  2. Mark
    October 23, 2016 at 5:23 am

    Safe, legal, and rare, and only in the case of rape or incest. A lot of rape and incest going on out there.

    With apologies to Patton, wade into them, rip them from the belly. When you put your hands into the gore that was an innocent life, you'll know what you've done.

    You Betcha! (1)Nuh Uh.(0)
  3. JD
    October 23, 2016 at 7:12 am

    While the numbers vary, US Catholics comprise the largest minority population in the world and 22-24% (or more) of this country with the true percentage of the undocumented (illegal) vote/residence being unknown. They dominate the above debate nationwide and are on the front lines every single day like no others.

    There has never been a time in recorded history since various (US-based) internal battles for the heart and soul of the Catholic church that a US Cardinal and two presidential candidates **effectively held the direction of an election in their hands** as was exhibited but the day after our last presidential debate.

    The lack of pressure on church leadership (non-Catholics as well) using that dinner's exchange and close up shots of all attendees when Trump spoke during these next 2 weeks will decide this election.

    The above failure is no different than the RightMI vote tally (housed on "MichiganVotes" when elections were insignificant) regarding the top legislative issues confronting us (now) before, during and after our fast upcoming lame duck.
    It isn't Jason's job to make that list (again).
    It is OUR job to have already made a NEW list and to have rendered down (by now). What ARE the most dangerous proposals about to be rammed through with this much power concentrated and unanimous votes passed like no other in Michigan history? Isn't every single RINO Republican predicting absolutely NO march on Lansing this year given zero Christian involvement in ALL issues concerning their faith? NO 2012 RightToWork type outrage whatsoever? ("no pressure from my constituents for even 'one' of my previous votes; nobody willing to be caught under a tent (period)...perfect!").

    Catholics standing down on abortion is one thing. Yet when the evidence is crystal (Wikileaks) clear and one candidate claims that the other (sitting next to a Cardinal) actually HATES Catholics (Christians) similar to our failure to even SPEAK of upcoming legislative issues in plain view?

    We have nobody to blame but ourselves when we substitute Trump's willingness to tell it like it is (make history) for our own reluctance (both one this site and on the Capital lawn) to make December 11th, 2012 (RTW) look like but a few brave Catholics shivering outside a Planned Parenthood.

    Trump can't carry an entire nation on his back in terms of public patriotism, truth or sacrifice.

    Our churches are poised to take this election by storm with what Trump

    Despite repeated calls to discuss even 'one'

    You Betcha! (1)Nuh Uh.(0)
  4. JD
    October 23, 2016 at 10:30 am

    Picture Cardinal Dolan (the inconsolable angry pro-life leader not days earlier) as a Tea Party leader and Hilary (sitting right next to him laughing/exchanging 'niceities' all night long) as a MiGOP establishment RINO leader. The scene is no different than any country club MiGOP meeting including TPers across this entire state for the last 7 years.

    Just as soon as Trump (or anyone else questioning their see no evil relationship) causes Hilary (Michigan RINOs) to IMMEDIATELY pivot her head towards Dolan (waffling TeaPartiers) in regards to their unholy love/HATE relationship over the past 7 years???

    "Dolan" (TP leader) QUICKLY looked away ashamedly (see similar current TP issues such as immigration, bloated pension bonding, common core, taxpayer funded corporate giveaways, 'foundation' control of local governments, abortion, etc.) due to the church's (TP party's) LONG obviously corrupt relationship with those DESTROYING the very core of what 'both' were 'supposed to' be standing for.

    There were no "Trump(s)" in our local Michigan grassroots movements willing to stand up for what was needed at every single highly publicized "non-political" event in our local communities let alone their *own* partisan events WHEN IT REALLY MATTERED (including now).

    What Trump (finally) did that evening along with the shameful reactions of ALL parties let alone everyone else in the room ('shock' followed by doing absolutely nothing) will be the closing curtain story of this election in more ways than one.

    You Betcha! (0)Nuh Uh.(0)

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