"Roe vs Wade"

One of the more lasting legacies of the free-wheeling '70s, for Americans at any rate, was the Supreme Court's opinion in the matter of "Roe v Wade", which decided that the anti-abortion laws of the State of Texas were unconstitutional, and therefore invalidated the abortion laws of nearly every other State in the Union in what can only be called a massive impingement on State rights, however noble the cause.

Jane Roe (Norma McCorvey) challenged a state's right to ban abortion in all cases except to save the mother's life, invoking the XIV Amendment's Right to Privacy. Henry Wade, the Texas Attorney General had to argue that the Supreme Court did not have juridiction. Mr Justice Blackmun, in delivering the verdict of the Court, January 22 1972, found that the Supreme Court did have jurisdiction, reaffirmed a woman's right to privacy under the XIV Amendment, held that "person" does not apply to the unborn, and that the States had no right to regulate abortion (i.e. ban it) in the first three months, but could act if life-threatening in the 2nd Trimester, and ban it in the 3rd Trimester thereafter.

Roe v Wade effectively created the Constitutional Right to have
an abortion.

Whilst of course this proved to be somewhat liberating-it meant that women could get a legal abortion instead of a more dangerous illegal one-and extremely controversial concerning the right to life of fetuses, it also challenged the rights of the States to decide on their own matters. Blackmun's interpretation of the XIV Amendment's "privileges and immunities" can be called into question, as indeed they have over the past quarter century, whilst the X Amendment makes it perfectly clear where power lies;

The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to
the people.

And the states fought back; and the Roe-supporting elements of the Supreme Court were unable to challenge them effectively. Between the Roe v Wade verdict of 1972 and Planned Parenthood v Casey of 1992 there were 4 Republican Adminstrations for one Democratic Administration (and President Carter appointed no new Justices)-the Justices of the great reforming years retired and liberal and hardline conservatives filled their places.

Through the two decades after Roe, the States progressively won back their right to regulate certain aspects of abortion, and to place certain limitations, such as Parental Consent for Minors and Spousal Notice Requirements, as they so chose. An attempt in 1992 to halt these infringements onto the original decision failed, and the Trimester framework was effectively abandoned in favour of a floating "Viability Line" whereby a State can act to have an abortion banned.

Thanks to the efforts of the moderates in the Court the Constitutional Right to have an abortion was upheld, and so it remains today. But is it Constitutional-there lies the rub. States rights can quite rightly be called a thorny issue-it was the issue of States rights which were the direct (or indirect) cause of the Civil War, States rights which led to the destruction of the NRA in the 1930s and which could cause a great schism over the issue of Gay Marriage in the upcoming century. No Amendment to the Constitution prohibits the States from acting in what they believe is in the best interests of its citizens. The Court took a bold step in declaring that the unborn are not "Persons", and its creation of the Trimester framework was admirable. At the time, in the prevailing sense of liberalism (it was the '70s after all, and the '60s were still fresh in the mind) it was right for what could be called a fundamental right of a woman to have an abortion to be affirmed.

The United States has "enjoyed" what can only be called an Abortion holiday, and many women have taken advantage of their right to have one. But with ever-growing opposition to the mere concept of abortion and the "abuse" of States rights, it is my opinion that Roe v Wade be overturned, and the right to decide be returned to the States. Abortion is after all a matter of health, and to the State should be given the welfare of its citizens.

However, if and when the States are given back the right to ban abortion, and a substantial number will, the Supreme Court and Congress should move to introduce a Constitutional Amendment giving the Female citizens of the United States of America the right to have an abortion. As far as I can see this is the only way to Constitutionally strip the States of their right to ban Abortion. Needless to say, it is sad to note that with the likelihood of an all-Conservative Court in the near future, the Court will overturn Roe and the States will reign supreme once more, and a great number of women will have been denied an inherent right enjoyed by at least a generation of American women in need.

That this could and probably will happen is testament to the growing conservatism of a majority of Americans and a steady polarising of opinon Pro and Con Roe, and is a sign that something seriously needs to be done to educate that majority in the right now implicit in the Constitution of the United States, albeit an unrecognised one.