The Case Against Abortion

In January 1973, a majority of the U.S. Supreme Court held that a woman is guaranteed the right to obtain an abortion by the Fourteenth Amendment's Due Process clause. Justice Blackmun, writing for the Court, said that this right was encompassed by the more general right of privacy, which was guaranteed by the Due Process clause. Blackmun premised his reasoning on the court cases which had found that a right of privacy included a freedom of decisionmaking in various personal and family situations. In particular, the Court had held previously that the right of privacy extended to decisions concerning sexual behavior and procreation.

The majority opinion in Roe restricted the legislature's ability to proscribe or limit abortions, holding that a fetus is not a legal human being but potential human life. The mother's privacy-based right to abort this potential life outweighed the state's interests in preserving this potential life throughout t

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liberty," the Roe decision went farther than the infamous Lochner v. New York decision seventy years earlier. Justice Blackmun said that where "'fundamental rights' are involved ... [the] regulation limiting these rights may be justified only by a 'compelling state interest' [and] that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." Lochner and its progeny had required reasonable legislative action furthering some permissible governmental goal. Roe, on the other hand, labelled the right to have an abortion a fundamental one, requiring a "compelling" defense for its inhibition, rather than just a "rational" one (the test which was essentially applied to economic rights). If the framers of the Fourteenth Amendment and the Lochner majority had envisioned the due process clause as protecting rights which were implicitly fundamental to American society, the majority in Roe apparently viewed personal liberty rights as "super-fundamental," needing strenuous protection. The Lochner Court was widely criticized for "legislating" its own theory of economic rights which had not been written into the Constitution, either in the Bill of Rights or the Fourteenth Amendment due pr
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Approximate Pages = 6 (250 words per page)

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