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In Roe v. Wade, 410 U.S. 113, this Court struck down a Texas law that rendered it illegal for a woman to abort a pregnancy unless her life was in danger. This Court granted complete freedom of choice to the woman in her first trimester of pregnancy. (Roe)
Subsequent cases presented to this Court placed restrictions on the holding of Roe. Notably, Planned Parenthood v. Casey, and Gonzales v. Carhart, reduced the number of circumstances in which an abortion can be legally obtained. However, the central holding of Roe — that a woman maintains the right to terminate within the first trimester of pregnancy — remains intact.
On November 5th, 2008, the voters of the State of South Dakota were presented with Initiated Measure 11. The Measure was approved. It added a new section to Chapter 22-17 of the State Constitution of South Dakota that asserts that all abortions terminate a living human being; that the State has a duty to protect all human beings, “including those…living in utero;” that abortions carry “significant psychological and physical health risks;” that termination infringes upon a mother’s right to a relationship with her child; that the State has an “established history” of protecting the life and health of the unborn child and its mother.
Bristol Roe is a resident of Pierre, South Dakota. She lives with her mother, Sarah, and father, Todd. She is a minor of 17 years of age. She was impregnated in an act of consensual sex with her boyfriend, who is also 17 years of age. She has thus far shown signs of an unremarkable pregnancy with no abnormal or imminent physical risks. Nevertheless, she has expressed desire to terminate her pregnancy with immediate effect. She has filed an injunction against the enforcement of Initiated Measure 11 on the grounds that denying her right to an abortion is a violation of her right to individual privacy as implied by the Fourteenth Amendment of the United States Constitution.
The issue presented to this Court today is whether the Due Process Clause of the Fourteenth Amendment of the United States Constitution provides for a fundamental right to individual privacy. If so, this Court must rule on whether this fundamental right to privacy encompasses the ability of a woman to terminate her pregnancy within its first trimester. If so, does Initiated Measure 11 deny this right to petitioner Bristol Roe?
MR. JUSTICE DOLGICER delivered the opinion of the court.
The initial point of contention that I wish to address is one that has been a most divisive force among the justices of this Court, one that has compelled the justices to assume positions on the very nature of the Constitution: is the Constitution a malleable document, evolving with society? Or is it a fixed set of regulations, timeless as it is explicit?
Over the course of several decades and numerous cases, this Court has found that the framers of the Constitution intended for the interpretation of their work in accordance with societal contexts. It has been established that the Constitution contains within it not only rights that are explicit, but also rights that are implied — those that are stated not with unwavering clarity, but rather that exist within the vague generalities of the Amendments. This Court has ruled that a constitutional right to individual privacy is among these implied rights. My fellow justices have long attempted to legitimize this right through an analysis of a number of amendments. In Olmstead v. United States, Justice Brandeis wrote of a constitutional right to be “let alone,” in which every “unjustifiable intrusion by the government…must be deemed a violation of the Fourth Amendment.”
More recently, this Court has found that the penumbra of the Due Process Clause of the Fourteenth Amendment — that “no State…shall deprive any persons of life, liberty, or property without the due process of law” — provides for a constitutional protection of individual privacy.
I concur that the Constitution contains a penumbral right to individual privacy that is fundamental to the free will of man and the fabric of a stable, liberal society. While affording credence to Justice Brandeis, I concur that this right to privacy is found within the Due Process Clause of the Fourteenth Amendment.
In Meyer v. Nebraska, this Court struck down a prohibition on the instruction of grade school children in a foreign language. Justice McReynolds held that the guarantee of liberty in the Due Process Clause exceeds protection against “bodily restraint.” Notably, it provides for the right “to acquire useful knowledge, to marry, to establish a home and bring up children…to enjoy those privileges recognized…as essential to the…pursuit of happiness by free men.” (Meyer)
The concurrence of Justice Goldberg in Griswold v. Connecticut, affirms the view of individual privacy as outlined in Meyer as “an essential part of the liberty guaranteed by the Fourteenth Amendment.”
Justice Goldberg, in the same concurrence, explains that the guarantee of liberty — broad in scope — “protects those rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.”
This Court, in Lawrence v. Texas, used the liberty guarantee of the Due Process Clause to strike down a statute outlawing intimate homosexual activity. Justice Kennedy noted that the statute attempted to regulate “personal relationships” that “are within the liberty of persons to choose without being punished…”
The Constitution fails to make mention of foreign language instruction, nor the use of contraception, nor the act of sodomy or other homosexual activity. Yet the right to adopt or reject such behavior in accordance with one’s own desires is a fundamental right. I cite this truth, as well as the doctrine of stare decisis, when reaffirming the principles of the Meyer, Griswold, and Lawrence cases, as well as other cases heard before this Court that give support to a fundamental right to individual privacy found within the penumbra of the Due Process Clause of the Fourteenth Amendment.
The right to privacy is a fundamental and guaranteed by the United States Constitution. However, there is no “all-encompassing ‘right to privacy.’” (Casey) Its boundaries must reconcile an individual’s right to liberty with the “demands of an organized society.” (Casey)
The rights recognized by this Court in Meyer, Griswold, and Lawrence are parallel in that they guarantee “personal or family privacy and autonomy.” (Casey) The issues addressed — education of a child, use of contraception, participation in sodomy — are those that involve matters of family dynamics. The consequences of decisions relating to these issues do not affect those uninvolved in the decision-making. These life choices define the “traditional relation of the family” that “the state cannot enter.” (Griswold)
This Court erred when it established commonality among the rights enumerated in the aforementioned cases and the right to an abortion, as discussed in Roe and Casey. Abortion does not fall within the scope of personal, intimate family issues. It is not a fundamental right but rather an issue that is sui generis — “different in kind from the rights protected in earlier cases” under the Fourteenth Amendment. (Casey)
Abortion, unlike the other rights to privacy guaranteed by this Court, “involves the purposeful termination of potential life.” (Casey) Abortion is a question that addresses not the quality but rather the very existence of human life; it is a question of life or death, with all of its gruesome connotations. Abortion, for this reason alone, warrants special consideration.
What’s more, the decision to abort is one that impacts a broad range of actors, far removed from the pregnant mother and her family. It is a “unique act” that is “fraught with consequences for others” — those that are physical, psychological, and societal. (Casey) Abortion tampers physically with the mother and the unborn child and compels the mother, the mother’s family, and those involved in executing the procedure to grapple with involvement in a “violent act against innocent human life.” (Casey) Society, too, “must confront the knowledge” that such a gruesome procedure is commonplace. (Casey)
The termination of a pregnancy victimizes an infant who cannot advocate on his or her own behalf. While the issues in Meyer, Griswold, and Lawrence involved apt adults and children, abortion reaches a decision — of irreversible impact–on an unborn human being with whom consultation is a physical impossibility.
Fundamental rights are those that “are so rooted in the traditions and conscience of our people” as to be inviolable. (Snyder) Abortion, in contrast to the issues of personal privacy presented in Meyer, Griswold, and Lawrence, holds a history not of government sanction but rather of regulation. The “longstanding traditions” of our nation “have allowed it to be legally proscribed.” (Casey) At the time of the ratification of the Fourteenth Amendment in 1868, there were “36 laws enacted by state or territorial legislatures limiting abortion.” (Roe) The Texas statute struck down in Roe was virtually unchanged from its adoption in 1857. (Roe) There is no precedent or justification in this Nation’s history for placing the right to terminate with the boundaries of personal choice.
This Court has long analyzed disagreements involving “fundamental personal liberties” — both the explicit (freedom of speech) and penumbral (freedom to personal privacy) — using the standard of strict scrutiny. (Griswold) “When there is a significant encroachment upon personal liberty,” the State must prove that its actions serve a compelling government interest that is “necessary…to the accomplishment of a permissible state policy.” (Griswold)
I endorse the use of strict scrutiny analysis — the most stringent form of judicial review–in cases concerning fundamental rights. However, this Court erred when, in Roe, it mandated a strict scrutiny review to issues relating to the right to terminate.
As previously asserted, abortion is sui generis. It is not a fundamental right, not one that is central to the ethics and ethos of our society. Thus “abridging” this right “need not be subjected” to strict scrutiny. (Casey)
This Court must judge upon issues of abortion rights using a standard of rational basis. States “may regulate abortion procedures in ways rationally related to a legitimate state interest.” (Casey)
Initiated Measure 11 of the State of South Dakota proscribes, as a class 4 felony, the termination of a pregnancy except when in circumstances in which the pregnant woman’s life is in danger; the pregnant woman’s health is in jeopardy; the woman was impregnated through rape or incest. (Measure 11)
In accordance with the doctrine of rational basis review, I affirm as constitutional the regulations outlined in Initiated Measure 11. Its prohibition of most abortions reconciles the wedge that Roe established between human life and the government interest in nurturing it. Let us systematically buttress this assertion.
It is without a doubt that, in the minds of those with good conscience, it is the legitimate interest of the State to protect the welfare of its citizens, to facilitate them in reaching full bloom, to bring them maximally close to the achievement of happiness. Logic dictates that it is the State’s role to sanction not the cessation but rather the expansion and efflorescence of human life. South Dakota’s Initiated Measure 11 is in line with this truth; it contends unequivocally that the State has a “duty” — indeed, a legitimate state interest — “to protect the life of all human beings.” (Measure 11) Abortion — both in idea and in practice — is in defiance of this most natural role of government.
The Constitution does not explicitly deny to unborn children the legal standing that is afforded to fully developed human beings. Nor should society deny to the unborn the moral standing afforded to others. In turn, limiting the right of a woman to terminate her pregnancy is rationally related to the legitimate state interest in protecting the unborn or potential life. In Casey, my brothers in dissent affirmed that the State holds a “legitimate interest in…unborn life.” In Gonzalez v. Carhart, the majority clarified the State’s legitimate interest in protecting “the life of the fetus that may become a child.” I concur that this Court’s previous decisions in Roe and Casey “undervalued the State’s interest in potential life.” (Gonzalez)
The State’s legitimate interest in protecting the welfare of its citizens is rationally related to its interest in protecting the health of the pregnant woman. Initiated Measure 11 asserts that termination subjects “the pregnant woman to significant psychological and physical health risks…” (Measure 11)
There is “medical uncertainty” of the physical risks posed to the pregnant woman during and after termination. (Gonzalez) However, there is no doubt that any medical procedure carries with it a certain amount of risk to the patient. The State’s interest in protecting the welfare of its citizens is rationally related to its interest in limiting risky medical procedures — especially when medically unnecessary. A prohibition of abortion in circumstances other than when medically necessary — as outlined in Initiated Measure 11 — reflects the State responsibility in protecting the physical well being of its citizens.
The State’s interest in protecting the welfare of its citizens encompasses the protection of psychological health. I find that this Court has, in Roe and Casey, unethically ignored the mental effects of termination on the woman, particularly in the post-procedural stages. It is most probable that “some women come to regret their choice to abort the infant life.” (Gonzalez) The protection of maternal health is rationally related to the prevention of the “severe depression and loss of esteem” that may linger long after an abortionist’s work is complete. (Gonzalez)
Initiated Measure 11’s prohibition of abortion returns to the medical profession its moral, sagacious identity that was mired by Roe. The State has a legitimate interest in “protecting the integrity and ethics of the medical community.” (Washington) Indeed, citizens in pursuit of good health place their full trust in experts authorized by the State to so intimately examine, diagnose, and remedy. That abortionists, with the blessing of the State, terminate life stands in defiance of the role of the medical profession that the State must legitimately promote. The very idea that the State authorizes any medical professional to end life — worse yet, infant life — is one that skews the obligation of the medical community to promote bountiful existence. (Gonzalez)
Initiated Measure 11 notes that the Constitution of the United States sanctifies and protects “the fundamental right of the pregnant woman to her relationship with her child.” (Measure 11) There is no closer connection among human beings than the “bond of love a mother has for her child” — the bond between she that nurtured within her, and the child that forever relies on her undying, unconditional, and unspeakably selfless care. (Gonzalez) The State’s legitimate interest in protecting maternal health and human life is rationally related — in the most fundamental of forms — to the protection of the dynamic between mother and offspring. This dynamic, after all, is the basis upon which human civilization thrives.
The Court has identified within the penumbra of the Due Process Clause of the Fourteenth Amendment a constitutional right to individual privacy. These rights are fundamental, and include those choices that are most intimate and personal in nature. This Court rightly affords strict scrutiny to cases in which the State abridges these rights. In Roe and Casey, this Court erred in assigning the right to an abortion a legal equivalency to those rights guaranteeing personal privacy. Abortion is a decision with ramifications as tragic in their effect as they are broad in the numbers of people that they impact. Abortion is not a fundamental right but is rather sui generis. It warrants not strict but rather rational basis analysis from this Court.
On these grounds, I uphold the legality of Initiated Measure 11.The regulation of abortion that it implements is rationally related to the State’s interest in protecting the life of all human beings — including the unborn and potential life, the physical and psychological health of the mother, the dignity of the medical profession, and the sacred bond between mother and child.
Staff. “Roe v. Wade, 410 U.S. 113 (1973).” Findlaw. 2008. Thomson Reuters. 2 Dec. 2008 <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=113>.
Staff. “Planned Parenthood of Southeastern PA v. Casey, 505 U.S. 933 (1992).” Findlaw. 2008. Thomson Reuters. 2 Dec. 2008 <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=505&invol=833>.
Staff. “U.S. Constitution: Fourteenth Amendment.” Findlaw. 2008. Thomson Reuters. 1 Dec. 2008 <http://caselaw.lp.findlaw.com/data/constitution/amendment14/>.
Staff. “Snyder v. Com. of Mass., 291 U.S. 97 (1934).” Findlaw. 2008. Thomson Reuters. 3 Dec. 2008 <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=291&invol=97>.
Staff. “Griswold v. Connecticut, 381 U.S. 479 (1965).” Findlaw. 2008. Thomson Reuters. 2 Dec. 2008 <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=479>.
Staff. “Meyer v. Nebraska, 262 U.S. 390 (1923).” Findlaw. 2008. Thomson Reuters. 2 Dec. 2008 <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=262&invol=390>.
Staff. “LAWRENCE V. TEXAS (02-102) 539 U.S. 558 (2003).” Supreme Court Collection. 2008. Cornell University Law School. 6 Dec. 2008
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