Landmark Cases – Birth Control and Abortion

Birth Control and Abortion: Roe vs. Wade (1973) and Griswold vs. Connecticut (1965)

A single woman in Texas by the name Norma McCorvey ‘Jane Roe’ decided she did not want to go through with her third pregnancy and sought  abortion services which were denied to her because under Texas law a woman could not obtain abortion services legally(Wagner, 2001).

The Supreme Court in this case, decided that the right of a woman to choose abortion or to choose pregnancy is included in the extension of a person’s right to privacy. A woman’s choice in the matters of abortion, is protected by the constitutionally implied right to privacy. The decision of the court was in favor of Roe 7-2(Wagner, 2001). The Texas law against abortion was then struck down by the Court because they found it unconstitutional to deny a woman’s right to choose. In the opinion, guidelines were set forth to guide state regulations regarding abortion, where only in the later stages of pregnancy could restrictions be imposed on a woman’s right to choose. Despite the modifications made on the opinion that guide state regulations, this ruling remains one of the most controversial rulings ever made by the Supreme Court. This case has historical significance in that in the United States women are allowed to exercise their right to choose between getting an abortion or keeping a pregnancy since abortion is legal in all the 50 states of America(Wagner, 2001).

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Before the Supreme Court’s decision on this issue, elective abortion, where abortion is sought not because the life of the pregnant woman is in danger, was a crime in all the states(Greenhouse & Siegel, 2012). In the support of their decision to strike down all anti-abortion laws, the Supreme Court looked into a previous case Griswold vs. Connecticut, where it had recognized the right to privacy finding that this right covered the decision to terminate a pregnancy in the first trimester(Greenhouse & Siegel, 2012). In the Griswold vs. Connecticut landmark case, the use of medicinal instrument, medicinal article, or drug to prevent conception was prohibited under the Comstock law of 1879 in Connecticut(Griswold et aL. v. Connecticut, 1965). The Supreme Court had found this law to be in contravention of the right to privacy, which is viewed as the right to be protected from governmental intrusion. A ban on the use of contraceptives was viewed by the Court as violating the right to marital privacy. In order to restore privacy as regards intimate practices, the Comstock law was invalidated by the Supreme Court in a 7-2 vote(Griswold et aL. v. Connecticut, 1965).

The concept of the right to privacy derives from the Bill of Rights and captures the spirit of the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and the Ninth Amendment as is applied against the states by the Fourteenth Amendment(Wagner, 2001). The right to privacy is thus fundamental and denying it violates the fundamental principles of liberty and justice. Although the right to privacy and the right to marital privacy cannot be found in the constitution as fundamental rights, According to Justice Arthur Goldberg, the Ninth Amendment acknowledges the nature of the Bills of Rights and the fact that it cannot exhaust all the rights contained by the people(Wagner, 2001). This allows the Court to derive the right to privacy and not necessarily attach it to a specific constitutional amendment. According to Justice Byron, the Due Process Clause, which is protected by the Fourteenth Amendment against the states, encompasses the fundamental right to marital privacy(Wagner, 2001).

The constitution gives women the right to terminate pregnancy without interference from the government, at least in the first trimester. The Court however found and acknowledged that the states have a greater interest in regulating abortion in the second and the third trimester.

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