Central Bucks School District



Roe v. Wade (1973) & Emergence of the “New Right”47796451333500Defining Abortion: The termination of a human pregnancy by removing a fetus or embryo before it can survive outside of the uterus. (the most common, agreed upon definition of abortion from the medical community is borrowed here)Note: Abortion is as controversial abroad as it is in the United States. Many governments struggle to strike a balance between the rights of pregnant women and the rights of unborn fetuses. The majority of countries around the world permit abortion. There is much variance in terms of when abortion can be restricted.Roe v. Wade (1973) General Overview: 512406318548600The Supreme Court extended the constitutional right to privacy—which had been articulated and used as justification in contraception cases in the 1960s—to be broad enough to encompass a woman’s decision whether or not to terminate her pregnancy up to the point of viability, which is when the fetus is capable of living outside of the womb; at this point, the state may choose to prohibit the procedure, though it does not have to. The Court overturned 30 state laws that prohibited abortion. The majority of states that had enacted prohibitions had done so when abortion was a medically hazardous procedure, so as to protect the pregnant woman. Advances in modern medical and surgical practices had been such that abortion in early pregnancy was much safer in 1973. Therefore, the state’s interest in protecting a woman from hazardous medical procedure had “largely disappeared.”The Court relied on the privacy provisions of the Constitution (several amendments—including the 14th) and abortion from an historical perspective to justify their decision. What are your personal thoughts regarding abortion? Consider the questions below and discuss with your group:When does “life” begin? At what stage, if any, does it cease to be morally permissible to destroy a human being in development? What properties must something have to be a “person”—to have a right to life? If you are pro-life, what about cases of rape, incest, and when pregnancy poses a serious health risk to the mother?If you are pro-choice, do you draw the line at some point during the pregnancy? If so, where? If not, why?What role, if any, do you think the government should play in this issue? Think about our founding documents and our political principles as you consider this question.Do you see any problems (Constitutional or otherwise) with either of the schools of thought below? Can you sympathize with the primary reasons given for abortions (see image below)? Is there something, besides abortion, that could be done so as to avoid those reasons? (example: access to contraceptives, education, etc.)Pro-Choice Argument(s) [considered a liberal view]Pro-Life Argument(s) [considered a conservative view]To be "pro-choice" is to believe that individuals have unlimited autonomy with respect to their own reproductive systems as long as they do not breach the autonomy of others. Such believers contend that the Constitution does not give the government a right to outlaw abortion. A comprehensive pro-choice position affirms that all of the following must remain legal: contraception use, emergency contraception use, and abortion (for the first two trimesters, or six months, of pregnancy).To say that someone is “pro-life” is to say that the person believes that the government has an obligation to preserve all human life, regardless of intent, viability or quality of life concerns. Such believers contend that life begins at conception. A comprehensive pro-life ethic, such as that proposed by the Roman Catholic Church and similar religious organizations, prohibits abortion, assisted suicide, and the death penalty.4619625615950015557545720005187497-702600Roe v. Wade (1973) Background and Decision: “Jane Roe,” an unmarried woman of 20 years was eight weeks pregnant. She wanted an abortion but her doctor refused, as abortion was not permitted in her state, unless it was performed to save the mother’s life. Jane was faced with the burdens of pregnancy, childbirth, raising a child she didn’t want, and the social stigma arising from being an unwed mother. The Court held that the right of privacy, rooted in the 14th Amendment, includes a woman’s decision whether or not to have a child. While that right is fundamental, it is not absolute and may be limited by interests of the state that are compelling. The state’s interests in protecting potential life are important and at various points during pregnancy become compelling enough to constitutionally permit regulation of the abortion decision. The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." The meaning of the Ninth Amendment is elusive, but some judges have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments. The Supreme Court, beginning in 1965, became of this opinion in their Griswold decision. The case involved a Connecticut statute that prohibited any person from using any drug, medicinal article or instrument for the purpose of preventing conception. By a vote of 7-2, the Court invalidated the law on the grounds that it violated the “right to privacy.”48768001143000In Roe, the Court first addressed the issue of whether a fetus should be legally considered a person in the full sense. Since the use of the word “person” in the Constitution always referred to a living being after birth, the fetus was not a person within the meaning and protection of the 14th Amendment (see right). The Court declined to decide the question of when life begins, stating that, “When those trained in medicine, philosophy and theology are unable to arrive at any consensus the judiciary is not in a position to speculate as to the answer.” Nevertheless, the Court felt that a state’s legitimate interest in protecting the pregnant woman’s health and its separate but also legitimate interest in protecting the potentiality of human life did exist and increases as pregnancy progresses. Thus, the Court ruled:37414204254500that the decision to have an abortion in the first trimester (the first three months of pregnancy) is up to the woman and her doctor, as procedures today are relatively safe during this time. The state cannot interfere or regulate abortions during the first trimester. that from the end of the first trimester until the seventh month of pregnancy, the state has some freedom to interfere with abortion procedure (requirements concerning the qualifications and licensing of the person performing the abortion and the facility where the operation will occur)that when a fetus becomes viable, or capable of life outside the womb—which, in 1973 was deemed to be the third trimester—the state’s interest in protecting potential life becomes compelling. If it so chooses, the state may regulate and even place criminal penalties on abortion except where abortion is necessary for the preservation of the mother’s life or health. The Court stated that the interest of the fetus should only be protected once it is capable of life outside the womb, though not at the expense of the mother’s life or health.Clarification: This ruling does not require any pregnant woman to have an abortion. Rather, it merely allows women who want one to have one free from state interference during at least the first trimester. Did the Court make the right constitutional decision (focus on legality)? Did the Court make the right decision from a moral standpoint? Why or why not?Role of the 14th Amendment: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Where could one gather that a woman has a “right to privacy” from the 14th Amendment?Where could one gather that a state has a right to protect potential life, given the text of the amendment?Roe Dissents: When a justice refuses to concur with the opinion of the majority in a case, they can issue dissenting opinions, expressing why they disagree with the majority. Justices Byron R. White and William H. Rehnquist wrote dissenting opinions in this case. Justice White wrote:I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. . . . As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.Rehnquist elaborated upon several of White's points, by asserting that the Court's historical analysis was flawed:To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."Evaluate the merits of these dissents. Can you think of any other argument the Court could have made in its dissents?15614078511500Post-Roe: In more than three decades since its 1973 Roe v. Wade decision legalizing abortion, the Supreme Court has weighed in on the issue another two-dozen times. It has repeatedly upheld Roe's central holding: that the U.S. Constitution guarantees a right of privacy that includes a woman's right to have an abortion during the first trimester of pregnancy, and later to safeguard the woman's life or health. In the 1992 Planned Parenthood v. Casey case, for example, the Court reasserted, “If the right of privacy means anything, it 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." But along the way, the pro-life movement convinced legislators to enact a host of laws aimed at reducing Roe's effects. The Roe decision immediately sparked a firestorm of criticism that attacked it on both moral and constitutional grounds. Conservative legislators around the country soon responded by pushing through a wave of laws and regulations that attempted to chip away at Roe. States passed a variety of laws restricting abortion, such as those requiring parental notification, spousal consent, and a waiting period before the procedure is allowed. Additionally, many pro-life states have seen to it that abortion facilities are shut down, severely limiting what the Court declared a constitutional right. These same states have also removed abortion coverage from their state health programs, which poor women rely on. Note: Jane Roe, formerly a pro-choice advocate, is now pro-life! Do you think it is appropriate for states to pass these laws in light of Roe?Note: In 2003, the U.S. Congress passed the Partial-Birth Abortion Ban Act, prohibiting a form of late-term abortion commonly referred to as “partial-birth abortion.” The law defines partial-birth abortions as “an abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.” Any physician who knowingly performs a partial-birth abortion can be fined or imprisoned under the law. The law’s constitutionality was tested and upheld by the Supreme Court in the 2007 case Gonzales v. Carhart. The law states that a “moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion . . . is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” It is unclear how many hospitals and clinics, if any, used this practice. 5272901643200Rise of the New Right, Excerpts from Not everyone was happy with the social changes brought forth in America in the 1960s and 1970s. When Roe vs. Wade guaranteed the right to an abortion, a fervent pro-life movement dedicated to protecting the "unborn child" took root.Many ordinary Americans were shocked by the sexual permissiveness found in films and magazines and the “eroding traditional family unit.” Those who believed homosexuality was sinful lambasted the newly vocal gay rights movement that emerged in the ‘60s. As the divorce and crime rates rose, an increasing number of Americans began to blame the liberal welfare establishment, which began under FDR (in the 30s/40s) and then continued under LBJ (in the 60s), for social maladies. A cultural war unfolded by the end of the 1970s. Enter the “New Right.” The New Right was a combination of Christian religious leaders, conservative business bigwigs who claimed that environmental and labor regulations were undermining the competitiveness of American firms in the global market, and fringe political groups. Though it was an eclectic bunch, the New Right held similar views: New Deal programs that still existed needed to be reversed; big government was a big threat to American liberty; spending by government, as well as taxes, needed to be dramatically reduced; and government regulations were inhibiting economic growth. The “Christian Right” played a large role in the New Right movement. Since the 1950s, members of the evangelical Christian denominations increased fivefold [context: Cold War—“Communist Atheism vs. American Christianity”]. By the mid-1970s, over a quarter of adult Americans identified themselves as born-again Christians. The Christian Right had many faces. Fundamentalists believed in a literal interpretation of the Bible while Pentacostalists claimed the Holy Spirit communicated directly with people on a regular basis. Despite theological divisions, all evangelical leaders agreed that America was experiencing a moral decline. They explained that homosexuality was a crime against God, and that a woman's place was in the home in support of her family. They criticized the "liberal" media for corrupting America's youth. They chided the courts when they “took religion out of the public schools” (by declaring school-sanctioned prayer in public schools unconstitutional in the ‘60s) and hoped for a conservative resurgence in American culture.5443796782700New Right leaders were highly organized and understood the potential of mass telecommunications. The Christian Broadcasting Network was established to spread the message and build databases containing the names and addresses of potential financial contributors and regularly solicited funds. By the late ‘70s, the “Moral Majority” was created with the intention of raising money to defeat liberal senators, representatives, and governors and gain control of school boards on the local level to advance their conservative agenda. Ronald Reagan freely accepted contributions from the New Right on his way to the Presidency in 1980.Like most movements, the New Right contained an extremist element. Racial hatred groups like the Ku Klux Klan and the American Nazi Party joined the outcry against American moral decline and supported the New Right. Militia groups formed in many states dedicated to attacking the American government they believed had become far too invasive. They steadfastly supported the right to bear arms as a means to defend themselves from tyranny. Some groups began stockpiling arsenals. These organizations interpreted the term "cultural war" in the most literal, ominous sense.The figure that drew all these disparate strands together was Ronald Reagan. Reagan, born in Illinois, achieved stardom as an actor in Hollywood movies and television before turning to politics, and eventually the White House (1981) where he became known as the “Great Communicator.” Taking a phrase from the 17th-century Puritan leader John Winthrop, he told the nation that the United States was a "shining city on a hill," invested with a God-given mission to defend the world against the spread of Communist totalitarianism. What is the connection between Roe and the rise of the New Right? The pendulum often swings from liberal to conservative in American life, as it seemed to do in the 60s and 70s (from liberalisms high point (LBJ, Civil Rights Movement) to conservatisms high point (rise of the New Right, which culminated in Reagan’s 1980 victory)). What other periods in history provide a similar contrast? ................
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