Privacy & The 14th Amendment

The illusionary right to privacy vs the rights of the unborn - Revisiting Roe v. Wade

This [past] week we have seen demonstrations and heard commentary pertaining to, and from advocates supporting, either a Pro Life or Pro Choice policy agenda. The majority of both have been engaged in strong and emotional, and often non-relevant rhetoric.

There has been little if any discussion on the laws pertaining to abortion as it has evolved (Roe v. Wade and its progeny), and whether the law as determined in 1972, that was based on the state of science and medical information pertaining to embryology as it existed then, would be sustained today.

There is perceptual fear among those that support Pro Choice that if Roe v Wade were to be re-examined based on the medical and scientific knowledge pertaining to embryology known today, that the medical, scientific and legal support for the findings in Roe would either be superseded or limited.

An intelligent discussion pertaining to the basis for either a Pro Choice or Pro Life policy requires an understanding of the Supreme Court’s rationale that established a limited right to an abortion as set forth in Roe v. Wade, 410 U.S. 113 (1973) and subsequent and related decisions.

Roe 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. Roe 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 limited right to have an abortion. (This is the finding that Constitutional scholars have serious issue with.)

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 people and the states under the Tenth Amendment* of the Constitution. Constitutional scholars have issues with the Court’s decision in Roe and the creation of an affirmative illusionary but limited right to an abortion from the fabric of the Constitution’s Due Process Clause. The creation of this illusionary right extinguishes the power of the states under the Tenth Amendment to set and establish laws pertaining to the public health, safety, and welfare of its citizens.

The alleged illusionary “right of privacy” to an abortion created under the Due Process Clause of the Constitution 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 in the womb as a person dilutes, if not abrogates, the woman’s alleged sole right to have an abortion.

The Court has created what appears to be a noticeable contradiction in its rationale. While superseding the states’ rights to regulate the availability of an abortion by creating an illusionary non existing Constitutional right of privacy, the Court recognizes a state’s right to protect the potentiality of the human life of the fetus that is dependent on the stage of the fetus’ embryonic development, and the viability of the fetus to sustain life outside the womb.

With this decision the Court determined that the rights of the fetus are separate and distinct from the mother’s illusionary right of privacy to have an abortion under the 14th Amendment. The Court determined that at certain stages of the pregnancy the rights of the fetus are paramount over the mother’s right to an abortion. The Court implicitly stated by its finding that the state’s interest to protect the fetus becomes stronger over the course of a pregnancy as the fetus acquires viability. The Court resolved the balancing of the competing rights 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. Namely, at what stage of a pregnancy does the fetus’ right supersede or abrogate the mother’s right.

The decision in Roe 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”.

The question when is the health of the mother in jeopardy has been the subject of medical and legal controversy because of perceived abuse in interpretation and application. No one questions its application in medically obvious life or death situations. However, when is the alleged psychological damage to the mental health of the mother a bona fide medical reason to justify a late term abortion?

For example: A woman was permitted to have a partial birth abortion in the last trimester of pregnancy when it was determined that the mother may suffer psychological damage to her health if the child was born because the father of the child reneged on his promise to marry the mother. Psychologists determined the birth of the child would be a constant and detrimental reminder to the mother of her failed relationship with the child’s father.

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 Casey 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. It has been alleged and in some cases proven that clinics providing abortion may omit compliance with the requirements pertaining to informed consent, providing medical information and mandatory waiting periods. The states have the power to legislate and enforce these requirements, including the sale and disposition of fetal medical tissue collected after an lawful abortion. Some states have prohibited the sale of aborted fetal medical tissue and have made it a criminal felony to do so.

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 these cases, thereby limiting the women’s erroneously perceived and illusionary absolute right to an abortion. These advances will concurrently increase the fetus’ right to be recognized as a person under the 14th amendment to the Constitution. This grants the states greater flexibility in setting standards for the lawful performance of an abortion to balance the alleged illusionary 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 and Casey were decided raises significant questions as to when a fetus is viable, and would provide the fetus separate and distinct constitutional rights as a “person” that the state may protect with appropriate legislation. Recent studies suggest a fetus exhibits a heart beat and experiences pain as early as 9 weeks. This raises a question should the fetus acquire Constitutional rights as a person, separate and distinct from the mother, under the existing standard of being capable to exhibit viability outside the womb; or should the new standard going forward be evidence that the fetus has acquired  characteristics of humanity based on medical evidence, such as evidence of a pronounced fetal heartbeat and sensory response to pain.

The controversy over when does a fetus become a person and thereby entitled to the Constitutional protection of the 14th Amendment and thereby abrogate or dilute the mother’s right to an abortion is the main reason why advocates of the illusionary right to an abortion under Roe do not want the Supreme Court to revisit and possibly reverse or further limit the decision in Roe v. Wade and its progeny. A Pro Choice ideological position to protect at all costs the Roe decision. A position that appears contradictory to their philosophical concepts of liberal progressivism.

Amendment X “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people.”

Jim “the Deplorable” Fuscaldo
Cedar/ Sedona

You Betcha! (7)Nuh Uh.(0)

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. 

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