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- Subscribe - Contact Us - Rate Card - Place an Ad Archives Revels Classifieds Real Estate Menu Guide Wedding Weather Subscribe Contact Us November 7, 2005 Case In Point: Roe v. Wade This high court nomination puts abortion center stage Make no mistake, the reason for the outcry from the conservative right regarding the nomination of Harriet Miers was not because she was found wanting as a conservative. It was because she was unable to demonstrate, based on past writings and opinions, that she was conservative enough. When the president said he knew what was in Miers’ heart, it was all but impossible not to hear those words as code, meaning, if seated, Miers would be the swing vote that would be the undoing of a Supreme Court case that has been in the cross-hairs of those on the right for decades: Roe v. Wade. With the withdrawal of Miers’ nomination, and the nomination of Samuel Alito, what is referred to as the president’s base is much pleased and itching for a fight. It will be the fight that they wanted before Miers name was offered up, and were so disappointed they were not going to get. Until now. In essence, this fight is about the landmark decision which established that all state laws outlawing or restricting abortion violated a constitutional right to privacy and those laws should be overturned. It has been a controversial and divisive decision, and it has framed a battle between advocates of pro-choice and pro-life that has been ongoing, sometimes violently, for more than 30 years. Roe v. Wade originated in Texas in March 1970, where a suit was filed on behalf of “Jane Roe” (later to be identified as Norma McCorvey). Dallas County district attorney Henry Wade was the defendant. The law in question made having or attempting to have an abortion a crime except by “medical advice for the purpose of saving the life of the mother.” At the time, abortions were widely proscribed by the states. The case eventually made its way to the Supreme Court. The Court issued its opinion on Jan. 22, 1973, with a 7-2 majority voting to set aside state laws outlawing abortion, permitting abortions during the first three months of pregnancy, and setting standards for regulations after that time to safeguard a woman’s health. The Court opined that even though the Constitution does not explicitly mention any “right to privacy,” it did find support for a constitutional right of privacy in the First, Fourth, Fifth, Ninth and Fourteenth Amendments. It determined that this right to privacy to be broad enough to encompass a woman’s decision to have an abortion. The Court also noted that induced early abortions had become safer than childbirth and held that the word “person” in the Constitution of the United States “does not include the unborn.” The Court made clear that it did not have to resolve the difficult question of when life begins, leaving that definition up to the respective disciplines of medicine, philosophy, and theology. The Court wrote, “The judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” And so the battle was joined, the critical question being, when does life begin? If life begins at the moment of conception, then an abortion, performed anytime after that moment, is infanticide. But if life (meaning a viable human being) does not commence until the moment of birth, then a first trimester abortion is a medical procedure, no more, no less. A definitive answer is elusive and profoundly subjective — as the court said, a matter of theology and philosophy — and therefore the decision to have a first trimester abortion is best left up to each woman. Again, as the Court stated, we as a society have not collectively agreed on what constitutes “life,” and until we do, many would argue, there seems to be no choice but pro-choice. It is our Gordian knot to be either unraveled or cleaved. Regarding Judge Alito: His record as a member of a three-judge appellate panel will be carefully scrutinized, especially with regard to his stance on a woman’s right to choose. There is one case in particular that will be closely examined by pro-choice advocates: it was the dissension by Alito to the opinion of his two colleagues regarding a 1989 Pennsylvania law that placed various obstacles in the path of women seeking abortions. Though the panel agreed that most of the provisions were constitutional, there was a requirement that a married woman notify her husband before obtaining an abortion which the majority struck down. Judge Alito did not feel that such notification placed an undue burden on the woman, despite the fact that some women feared the consequences of telling their husbands. He wrote, “I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women.” For pro-choice advocates, it is a troubling dissension. For pro-life advocates it is a hopeful sign. Case in Point is a weekly editorial column designed to provide in-depth commentary on current events. 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