This paper will present the legal arguments against the constitutional right to an abortion in the United States. The paper will specifically argue that Roe v. Wade, was wrongly decided and that the U.S. Constitution does not guarantee a right to an abortion under the Due Process Clause of the Fourteenth Amendment. The first part of the paper will point out the lack of basis for the right under substantive due process analysis, while the second part will point out the factual problems in the opinion.
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 the first trimester of pregnancy because it had no compelling interest in the mother's health during this time (since the mortality rate for full-term pregnancies was higher than that for women having first-trimester abortions). During the second trimester, the state could regulate abortion procedures for the sole purpose of protecting the mother's health, although the had to be reasonably related to her health. Since the fetus typically became viable at the beginning of the third trime...