Wednesday, September 03, 2008

ROE VS. WADE

There are three cases that I have researched and often quote when I am defending adoptee rights. It seems like the Republicans are determined to overturn Roe vs. Wade in order to end all abortions. You can read the case information here. Roe vs. Wade did not give women the right to abort. It gave women the right to privacy when it came to terminating her pregnancy. It removed the government interference in many of the states' abortion laws. Up until 1973, abortion was illegal in many states. The states on their own individual levels either restricted it or made it unlawful all together.

Another case that is similar to Roe vs. Wade is Griswold vs. Connecticut. Griswold vs. Connecticut gave married couples the right to privacy again. Contraception was illegal for even married folks to have in 1965. It made the state laws that banned contraception. Both cases before the Supreme Court began this process of the definition of right to privacy. Both of these courts defined the right to privacy was about the right to be free from governmental interference in the private lives of its peoples.

From Griswold vs. Connecticut:

"Further, this right to privacy is "fundamental" when it concerns the actions of married couples, because it "is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of our civil and political institutions." Because a married couple's use of contraception constitutes a "fundamental" right, Connecticut must prove to the Court that its law is "compelling" and "absolutely necessary" to overcome that right (i.e., the "strict scrutiny test"). Because Connecticut failed to prove this, the law was struck down as applied.

Other justices, while agreeing that marital privacy is a "fundamental right" and that the Connecticut law should be struck down, disagreed with Justice Douglas as to where in the Constitution such a "fundamental right" exists. In his concurrence, Justice Arthur Goldberg argued that the Ninth Amendment, which states that the Bill of Rights does not exhaust all the rights contained by the people, allows the Court to find the "fundamental right to marital privacy" without having to ground it in a specific constitutional amendment. In another concurrence, Justice John Marshall Harlan II maintained that a "fundamental right to marital privacy" exists only because marital privacy has traditionally been protected by American society. Finally, in yet another concurrence, Justice Byron White argued that a fundamental right to marital privacy constitutes a liberty under the Due Process Clause, and is protected by the Fourteenth Amendment against the states."

In another case concerning contraception, Eisenstadt vs. Baird also ruled similarly on the issue of giving contraception to young women. Here is a brief on the case:

"Appellee William Baird was convicted at a bench trial in the Massachusetts Superior Court under Massachusetts General Laws Ann., c. 272, § 21, first, for exhibiting contraceptive articles in the course of delivering a lecture on contraception to a group of students at Boston University and, second, for giving a young woman a package of Emko vaginal foam at the close of his address.

As interpreted by the State Supreme Judicial Court, these provisions make it a felony for anyone, other than a registered physician or pharmacist acting in accordance with the terms of [the exceptions noted below] to dispense any article with the intention that it be used for the prevention of conception. The statutory scheme distinguishes among three distinct classes of distributees — first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent, not pregnancy, but the spread of disease.... "

Here is the Supreme Court's decision:

"While I join the opinion of the Court, there is for me a narrower ground for affirming the Court of Appeals. This to me is a simple First Amendment case, that amendment being applicable to the States by reason of the Fourteenth.

Under no stretch of the law as presently stated could Massachusetts require a license for those who desire to lecture on planned parenthood, contraceptives, the rights of women, birth control, or any allied subject, or place a tax on that privilege....

Had Baird not "given away " a sample of one of the devices whose use he advocated, there could be no question about the protection afforded him by the First Amendment....

Baird gave an hour’s lecture on birth control and as an aid to understanding the ideas which he was propagating he handed out one sample of one of the devices whose use he was endorsing....

It is irrelevant to the application of these principles that Baird went beyond the giving of information about birth control and advocated the use of contraceptive articles. The First Amendment protects the opportunity to persuade to action whether that action be unwise or immoral, or whether the speech incites to action....

Putting contraceptives on display is certainly an aid to speech and discussion. Handing an article under discussion to a member of the audience is a technique known to all teachers and is commonly used....

I do not see how we can have a Society of the Dialogue, which the First Amendment envisages, if time-honored teaching techniques are barred to those who give educational lectures."

The two other Supreme Justices also concurred with only one dissenting. In these two cases, its very clear that the right to privacy is about the right to be free from governmental interference.

In Roe vs. Wade:

"Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972)."

My question to those reading this: Do you really want Roe vs. Wade overturned? It will begin to tear down the right to privacy from governmental interference. This right is a fundamental right. Do you want to be stripped of that? I know that I don't. I know that I don't want it for my daughters. I want the same sexual autonomy that men have. If we do this, we will see women's familial choices stripped as they were in the Era of Mass Surrender.


6 comments:

Angela said...

You go...

I love the blog and your points are dead on.

I am still trying to write up my comments to HHS on the new regulations. Have you read 45 CFR Part 88 yet? It goes beyond restricting public money being used for abortion.

Any one involved with health care (including the person who makes the doctor's appointment) can refuse to provide service. And they can refuse to provide any information on services that they are against because of their religion.

So this covers all reproductive health. Some examples... tubal ligation, birth control pills. And it is a hit mainly against women.

Since we are talking about restrictions on public/government money, it is going to hit the people who really cannot afford it. It can hurt foster teenagers who may be on birth control to help with skin issues.

I believe that fertility treatment isn't accepted under the Muslim religion (need to verify this one). So a Muslim pharmacist could legally refuse to provide medication because of his religion.

I have some information (and links) on my blog. http://ouradopt.com/adoption-blog/aug-2008/angelaw/outrageous-please-stand-womens-reproductive-health

KITE KAMP GIRL said...

I got into a discussion with an adoptee friend of mine about this issue. I thought this too. Until I researched. Part of it was to show her what I was talking about.

Yes I do believe that abortion should be regulated but at reasonable discretion. It should a state issue. They also have to remember that we can't totally control what a woman does with her body either. It seems like this is what it is all about.

Sharon said...

Would that be the CFR that was passed by McCain-Feingold? In that case, its not just McCain you have to go after...that CFR was meant to restrict the first amendment too, but I dont see anyone getting in uproar about that...too many people see it as an opportunity to shut out voices they dont like to hear (largely those of a conservative political bent)

Amy - I appreciate that you challenged me on this issue...I admire and respect that you actually go through the effort to research the assertions you make...unlike MANY MANY MANY on the Left who just spout raving lunatic and hysterical talking points. So please understand that I dont take up this debate with any intent to slam you. I am in the process of understanding the laws that address this as well.

But you have to know that I also understand that Roe v Wade classifies the unborn as non-human and therefore without rights. It is this interpretation that so many conservatives are adamant to oppose. And I support that too. It is NEVER wrong to choose life. In my own particular opinion, a girl made her 'choice' when she spread her legs and invited the guy to penetrate her. Contraceptives and condoms and 'education' dont stop biology from happening. The percentages are not enough and do not excuse the percentages that bring about babies. I reference my sister in law...she was on birth control after her first child...began taking herbal supplements to combat allergies...turns out those herbal supplements contraindicate contraceptives...but she found out this too late, after she found she was pregnant again. Medicien is a wonderful thing, but far too many people see it as the Cure-all for bad decisions.

I also believe once that choice is made, everything after is simply...erm...'damage control' (unless the pregnancy is intentional). Once that baby is conceived, both the mother and the father HAVE to live with it for the rest of their lives. Whether its aborted, or adopted out, or kept, the BABY EXISTS. And Roe v Wade, by its mere existence, will not change human nature. its been on the books for 30+ years, and as far as I can tell, the number of unplanned pregnancies have jumped...and God knows how many unborn have been sacrificed to "privacy."

You DID point out that Roe v. Wade also protects the natural mother in her assertion that she should be 'protected' from a seeking child. Maybe I misunderstood you. I cant remember now. But it seems to me that its just one more evil to the ruling that was NOT given due process by the American people. Wether it was about privacy or abortion or whatever, it should NOT have been decided by 9 activist judges who were looking to legislate from the bench. It was an issue that should have been brought to the states. At this time, there are still enough of these activist "evolving Constitution" judges on the Supreme Court who will NOT allow it to go to the states...and THAT is what the pro-life movement is about...to put a Constitutionalist judge on the bench so that this issue can be resolved the way it was meant to be resolved.

*whew* Sorry for the rant, Amy...but you DID ask...as I said, I am very much in respect of the work you do, and you prove yourself with integrity by actually going out and doing the research. You stand above me there. I hope I can rise to the challenge you gave me. But I have been thinking about it, and so far, those are the thoughts bumbling aorund in my head...

KITE KAMP GIRL said...

The CFR that Angela was discussing was the recent Department of Health and Human services mandate.

You can read at this link.

http://www.hhs.gov/news/press/2008pres/08/20080821reg.pdf

What they are trying to do with it is give medical personnel who have a conscientious objection to giving women all choices for her reproductive health a job in places like Planned Parenthood. This is a initiative brought on by President Bush and the Department Head of the Health and Human Services. They want to change the definition of abortion and also make places like Planned Parenthood hire people who object to their practices. They want to change the definition of abortion to include some forms of birth control. An example of that would be the birth control pill. They would like to see all forms of birth control abolished except maybe the condom.

Planned Parenthood not only provides abortions but also many other services. Like the Pap Smear, pregnancy tests, providing medical care for pregnancy.

As far as Roe vs. Wade, legislators and the adoption industry often argue this case for the right of a mother's privacy.

I am not saying anything for or against abortion here. I am arguing what the definition of right to privacy really is. Its the freedom from government interference. The adoption industry and the legislators use this case to keep records sealed.

These people that brought these cases before the Supreme Court were people that stated that the government was intruding upon their private business. All the Supreme Court was saying was yes the state governments had no business regulating the sex lives of Americans. They also stated that the states could regulate abortion but they could not abolish it.

If abortion is abolished, then where would women who were pregnant via rape or incest go? What about the health of the mother? What about the women whose pregnancy is not viable? I have read a couple of women who have spoken very honestly about abortion. One female blogger had to have one because her child would not live outside of her body. She had to have one. A couple of states have tried to pass abortion bans. They have failed. The people of those states will not allow abortion to be completely banned.

Birth control is not just about preventing pregnancy anymore. Here is an example of it.

http://ouradopt.com/adoption-blog/aug-2008/fostermommy/when-foster-daughter-has-menses-hygiene-issues-use-depo-provera-p

Do we really want to abolish Roe vs. Wade? I don't think that we do because then the government goes back to regulating the female reproductive system. If Roe vs. Wade gets thrown out, so does Griswold vs. Connecticut and on down the line.

Anonymous said...

"""It will begin to tear down the right to privacy from governmental interference. This right is a fundamental right. Do you want to be stripped of that? I know that I don't. I know that I don't want it for my daughters. I want the same sexual autonomy that men have. If we do this, we will see women's familial choices stripped as they were in the Era of Mass Surrender. """

ITA Amy.....to carry a pregnancy to term or not, is a choice every emother makes. We can't go back to the days when reproductive choices/decisions are restricted through legislation.

Nobody should have the right to force a woman to carry a pregnancy to term.
MaeDay

KITE KAMP GIRL said...

Believe me, I am not a complete totally flaming liberal. I firmly believe in gun rights. Alot of that comes from living in the country as I do. I live so far out in the country that it is a necessity. Perfect example, we have a raccoon eating all the cat food. The cats were actually more comfortable eating dog food than their own. We can't have wild life coming up on the hill and attacking our dogs and cats. Their purpose is to keep the rats, snacks, hogs, coons, skunks, and other such critters away. There are certain situations that I vote very conservatively on but others like women's rights. I am very ferociously liberal on.