Location: Minnesota, United States

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Tuesday, April 19, 2005

Roe v. Wade and the 14th Amendment

So, yesterday I was sitting in my history class, American History II The Civil War to Present Day, and we were discussing a document titled “Judge Carswell’s ‘Sex Plus’ Doctrine”. This document was written in 1970, and is a transcript of Carswell’s appointment testimony before the Senate Judicial Committee in 1970; he was not appointed as a Justice (you can find the transcript here). Somehow—I’m not sure exactly how, I think I might have spaced for a bit—we got onto the topic of Roe v. Wade (that’s the Supreme Court ruling upholding the “right” of a woman to have an abortion). When we discussed Roe v. Wade in class it was mentioned that the main point the Court used in their ruling was that the 14th Amendment, which guarantees against state action, ensured the right to privacy, including the “right” of a woman to have an abortion. I have copied the 14th Amendment just below, the whole thing in its entirety (even though the Court only used the part on Due Process). Please read it very carefully and tell me when you find where it gives the right to privacy.

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Are you done reading it, then? Did you find the right to privacy? I did not; I found the right to life, liberty, and property, but not privacy. Why? Because it is not in there! Legally, the Supreme Court ruled incorrectly here. This is just legal common sense here people. For once I am not going to argue from a moral standpoint and I am just going to say that the Supreme Court is legally wrong—the 14th Amendment does not guarantee the right to privacy! Privacy is nice, and we expect to get it; but it is not a right guaranteed by the 14th—simple as that. The following Justices voted FOR Roe v. Wade: Harry Blackmun, Warren Burger, William Douglas, William Brennan, Potter Stewart, Thurgood Marshall, and Lewis Powell. The following Justices voted AGAINST Roe v. Wade: Byron White and William Rehnquist. The following quotes are pulled from writings by both White and Rehnquist in dissent of Roe v. Wade:

Byron White:

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.

William Rehnquist:

If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the "liberty," against deprivation of which without due process the Fourteenth [p173] Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U. S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

Also, in an interesting turn of events, I found the following on Wikipedia:

"Jane Roe" switches sides

[…] "Jane Roe," whose real name is Norma McCorvey, became a member of the pro-life movement following her conversion to Christianity, and now fights to make abortion illegal. In a press conference held on January 18, 2005, McCorvey claimed that she was the "pawn" of the ambitious Weddington, who was looking for a plaintiff to challenge the Texas state law prohibiting abortion. Using her prerogative as a party to the original litigation, she sought to reopen the case in a U.S. District Court in Texas and have it overturned. Her new stance is based on claims made since the decision, including evidence of emotional and other harm suffered by many women who have had abortions, increased resources for the care of unwanted children, and additional evidence of the humanity of the fetus. On June 19, 2003, Judge David Godbey ruled that the motion was not made within a "reasonable time." On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, ending McCorvey's appeal.