Challenges to Roe v. Wade - women's right to privacy?

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Challenges to Roe v. Wade – women’s right to privacy?

We want abortion, so we will no longer have to have abortions.

Second-Wave Women’s Movement, Italy

Thirty years have passed since the Supreme Court of United States stated its opinion in the Roe v. Wade case, which later became known as the landmark case that legalized abortion in the U.S. The Court held that a woman's right to an abortion falls within the right to privacy protected by the 14th Amendment (Amendment XIV), and this right is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (Roe v. Wade, 1973). However, irrational as it may seem, the following years have brought new challenges towards women’s constitutional right to privacy, introducing restrictions which would likely lead to complete ban to abortion. The most recent – and the most threatening for abortion advocates – is the so-called “Partial-Birth Abortion Ban”, signed into law by US George W. Bush on November 5, 2003. By doing so he put Roe v. Wade indeed in danger of reversal, which as a matter of fact is now just a step away. With a brief discussion of the most important legal cases challenging women’s right to abortion through their right to privacy (both in the explicit or implicit way) that preceded or followed the Roe v. Wade case, I would like to show how woman’s right to privacy was reflected in court cases and the challenges the partial-abortion ban imposes on the women’s constitutional right to privacy.

According to the Center for Reproductive Rights, “reproductive rights, the foundation for women’s self-determination over their bodies and sexual lives, are critical to women’s equality. […] Laws and policies that protect and advance these rights are essential, and there is no legal decision more fundamental to protecting a woman’s reproductive freedom that Roe v. Wade, the landmark 1973 case that legalized abortion in the U.S” (The Center, 2003, p.3). However, Roe v. Wade was not the first case about the right to privacy. We could trace it in courts as back as in the end of 19th century, when Union Pacific Railway Co. v. Botsford was held (The Center, 2003, p. 25). The first challenge to the right to be let alone took place there, when the United States Supreme Court could not compel the plaintiff to undergo a surgical examination. The court stated its opinion in the following manner: “"[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law"(The Center, 2003, p. 26).

This right to be let alone was questioned again in Olmstead v. United States (1928), where it was regarded as “the most comprehensive of rights and the right most valued by civilized men” (The Center, 2003, p.26).

Following that there is the case Skinner v. Oklahoma (1942), where the court in a unanimous opinion held that forcing a prisoner to undergo sterilization is the violation of the equal protection clause of the 14th amendment (The Center, 2003, p. 26).

This decision was based on the idea that all people have a fundamental right to make a choice about marriage and procreation.

One of the most famous cases connected with the right to privacy is Griswold v. Connecticut (1965), where the Court held that the right to privacy is constitutional, derived from the penumbras and emanations of the Bill of Rights (Griswold v. Connecticut, 1965). Consequently, The Court annulled a Connecticut statute that restricted married couples from using of birth control, arguing that the right to marital privacy guarantees married couples’ access to contraceptives.

1971 is marked in the history of the cases being reviewed as the year when Roe v. Wade was first argued before the Supreme Court. It was followed by second arguing in 1972 and it was not until 1973 when both Roe v. Wade and the closely related case Doe v. Bolton were decided by the Court on the same day. Meanwhile one more case named Eisenstadt v. Baird was held in 1972 (Eisenstadt v. Baird, 1972). Like Griswold v. Connecticut, this case touched upon the access to contraceptives, though this time not only for married but for unmarried adults as well. The Court decided that prohibiting access to contraceptives for unmarried couples while providing it to married violated the equal protection notion of the 14th amendment. The decision was that “[the right to privacy] … is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (Eisenstadt v. Baird, 1972). One can see that the ground was already well prepared for the Court’s decision in Roe v. Wade, which was decided in the following year.

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Roe v. Wade provided that a woman's right to an abortion falls within the right to privacy protected by the 14th Amendment, and the restrictions on it must be narrowly elaborated to serve compelling state interest. Moreover, according to the judgement, the state’s interest in the life of fetus is not compelling before its viability, and even after viability the state must not restrict women from access to the abortion whenever it has vital importance for the life or health of the pregnant woman. More concretely, the Court decided:

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