The Supreme Court of USA re-affirms abortion

What you need to know:

The Court would lack legitimacy if it frequently changed its Constitutional decisions

The Supreme Court in the United States of America ruled in 1973 that it was the constitutional right for a woman to terminate a pregnancy she was carrying. This ruling has since then legalised abortions in the USA. There have, however, been spirited legal efforts by conservatives to overturn this ruling to, among other issues, protect the unborn child.  Various states have challenged the initial ruling of 1973, with some of the legal challenges making their way to the very Supreme Court. One of these cases is that of Planned Parenthood vs Casey that arose from the Pennsylvania Abortion Control Act of 1982.  This law required that a woman seeking abortion had to give her informed consent prior to the procedure and sign a statement declaring that she had notified her spouse prior to undergoing the procedure. Minors had to get the informed consent of at least one parent or guardian and facilities providing abortion services had to report these cases.

The Supreme Court once again upheld its ruling of 1973. To the court liberty finds no refuge in a jurisprudence of doubt; in the earlier ruling, Court noted that the essence of the ruling was that the constitution protects a woman’s right to terminate her pregnancy in its early stages. Before court, this time, the definition of liberty was being questioned. The Supreme Court upheld its earlier ruling based on the Due Process Clause of the Fourteenth Amendment which stated that “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child”.

Court also discussed the doctrine of stare decisis (respect of precedent) and provided a clear explanation why it stuck to its earlier ruling. The judges acknowledged the need for predictability and consistency in judicial decision making. They acknowledged that it was important for Court to stand by prior decisions, even if those decisions some found unpopular, unless there was a change in fundamental reasoning underpinning the previous decision. The judges explained that the earlier ruling had not proved intolerable and that the ruling had become subject “to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequality to the cost of repudiation”. To them the law had not developed in such a way to leave the earlier decision “no more than a remnant of abandoned relic”; the facts had not changed to rob the initial ruling of significant application or justification. The initial ruling defined the capacity of women to act in society and to make reproductive decisions.

Court noted that whenever there is a contention in the interpretation of the Constitution, there is need to accept a common mandate rooted in the Constitution. The judges also noted that Court should not been seen to overrule a prior decision merely because the individual members of the Court had changed. The Court would lack legitimacy if it frequently changed its Constitutional decisions. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, and not as compromises with social or political pressures that have no bearing on legal principles. To them the Court could not pretend to be re-examining the prior law with any justification.

In the initial ruling, the law completely forbade states from regulating abortion during the first trimester of pregnancy, permitted regulations designed to protect a woman’s health in the second trimester, and permitted prohibitions on abortions during the third trimester, when the fetus becomes viable, under the justification of fetal protection, and so long as the life or health of the mother was not at risk. Court, however, this time overturned the trimester framework in favor of a viability analysis. Court found that continuing advancements in medical technology had proven that a fetus could be viable at 23 or 24 weeks rather than the 28 weeks previously thought. Court redrew the line increasing state interest at viability because of increasing medical accuracy when fetus viability takes place. Court also felt that fetus viability was more workable than the trimester framework.

Court ruled that at the point of viability and subsequent to viability, the state could promote its interest in the potentiality of human life by regulating, or possibly proscribing, abortion except where it was necessary, in the appropriate medical judgment, for the preservation of the life or health of the mother. Prior to fetus viability, Court held that the State could show concern for fetal development, but it could not impose an undue burden on a woman’s fundamental right to abortion. To Court this new pre- and post-viability line recognised both the woman’s constitutionally protected liberty, and the State’s important legitimate interest in potential life.

To be continued


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