Rewriting Roe v. Wade

Presented in this essay are suggestions for rewriting Roe vs. Wade, the case that resulted in the establishment of a constitutional right to abortion. Essentially, the argument is 1 of equal protection. It is suggested that abortion be viewed as presenting a problem that might be termed "the law of samaritanism" -- the law regarding obligations imposed on certain individuals to provide assistance to others. In American law it is a deeply rooted principle that an individual is ordinarily not required to volunteer assistance to another individual who is in danger or in need of aid. The argument presented maintains that if a pregnant woman is required to carry the fetus to term and deliver it, then she is being compelled to be a Good Samaritan. It is argued further that if the generally limited scope of obligations of samaritanism under current law are considered, and the special nature of the burdens imposed on pregnant women by laws forbidding abortion are also considered, the obvious conclusion is that the equal protection clause forbids imposition of these burdens on pregnant women. The argument is developed in a lengthy form and calls for an extended discussion of the law of samaritanism. The uniqueness of the abortion case also creates problems as the equal protection argument is approached, and an approach to equal protection questions is sketched.     

Roe v. Wade and the history of abortion regulation

In "Roe," the Supreme Court found that the privacy right in the 14th amendment's view of "personal liberty" encompasses a woman's right to choose an abortion. The Court found that "abortion is a fundamental right." These conclusions are mistaken. The Court's analysis of "the history of abortion regulation" had a lot of errors and did not consider the state of technology in which abortion evolved. Sir Edward Coke, a 16th and 17th century jurist, said that abortion was a "great misprison." Quickening, the point at which a woman feels life, was used to determine fetal viability. State courts, therefore, viewed "abortion after quickening as common law crime." By the end of 1868, 30 to the then 37 states had passed laws restricting abortion. The Supreme Court said that the 19th century laws were passed to guard the mother's health "against the dangers of unsafe operation." In the 15 months before "Roe," 5 state courts said that their abortion laws were constitutional. They said that this was "intended to protect the lives of unborn children." Therefore, the Court's belief that "the state courts focused on the State's interest in protecting "the health of the mother" was unexplainable. The Court said that in many states the woman couldn't "be prosecuted for self-abortion." 17 states did "incriminate the woman's participation in her own abortion," but the Court did not note this. The Court's premise about the greater hazards of late abortions is mistaken. The states were concerned, in the late 19th century, about whether the attempted abortion caused the death of a child. The "right to an abortion" can only be seen as "fundamental" if it is "implicit" in the "ordered liberty" concept or "deeply rooted" in US tradition and history. "Roe" struck down the abortion laws of all 50 states and should be overturned.     

Constitutional limitations of the privacy framework advanced in Eisenstadt v. Baird and Roe v. Wade

This paper examines the role of framing in advancing a progressive sexual and reproductive rights agenda. U.S. Supreme Court decisions including Griswold v. Connecticu and Eisenstadt v. Baird helped establish legal precedent invoking a ＂privacy framework＂ for subsequent cases including Roe v. Wade （as well as Doe v. Bolton and, more recently, Lawrence v. Texas）. This paper highlights the limitations of the privacy framework while exploring more potentially efficacious frames.     

Roe v. Wade and the lesson of the pre-Roe case law

The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process.