Privacy

That's right, privacy. The constitution of the United States says absolutely nothing about abortion. This is of course, not surprising given that the founding fathers were all...well FATHERS. Seriously though, the constitution is without question a tricky document. There is the ninth amendment which talks about not denying rights simply because they are not specified in the constitution but that's ambiguous at best.

So on what bases did states laws banning abortion become moot? Enter the fourteenth amendment. This includes a "due process clause which prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness".

Using the right to privacy, drawn from the 14th amendments right to due process became linked to the abolition of anti-abortion laws through the land mark case Griswold v. Connecticut. In Griswold v. Connecticut (1965), the Supreme Court ruled that a state's ban on the use of contraceptives violated the right to marital privacy. Once a precedent was set in this ruling, the possibility of using these grounds to declare states abortion bans unconstitutional became more realistic.

It took several cases, but the one that finally reached the Supreme Court came out of Texas. The Texas law banned all abortions except those necessary to save the life of the mother. Jane Roe (Norma L McCorvey) claimed that while her life was not endangered, she could not afford to travel out of state and had a right to terminate her pregnancy in a safe medical environment.

It was found that the ban on abortion in the State of Texas was unconstitutional in that it violated a pregnant women's right to privacy, at least within the first trimester of pregnancy.

The Court argued that the "zone of privacy" was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This decision looked at the physical, psychological, and economic stresses a pregnant woman must face.


Roe v. Wade remains extremely controversial to this day and while it did legalize first trimester abortions it let states decide other factors that very much affect the ease in which women may obtain an abortion. Spousal notifications, parental notifications, waiting periods, mandatory literature, mandatory ultrasounds and banning abortions outside of hospitals are a few examples of the requirements passed by state legislatures.

It remains difficult to categorize Roe v. Wade as a complete victory for women and the right to decide whether or not to carry a fetus to term. I think that in some ways Roe got the decision right but went about it in the wrong way. Setting the court’s decision on the trimester formula is far from ideal and doesn't decide what the court says about abortion only the relationship between the right to privacy and the states interests in a women's pregnancy. No set definition of when "life" begins exists and the court’s decision says that. Thus, on the one side you have the Right to Life groups holding that the Supreme Court legalized murder. On the other, the courts poorly reasoned justification for legalizing abortion didn't go far enough and furthermore caused a backlash against abortion that has yet to be repaired.