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Landmark Cases of the U.S. Supreme Court

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Classifying Arguments

Directions

The following is a list of arguments in the Roe v. Wade court case. Read through each argument and decide whether it supports Roe’s side (R), against the Texas law restricting abortion; Wade’s side (W), in favor of the Texas law restricting abortion; both sides (BOTH); or neither side (N).

  1. The Fourteenth Amendment says "No State shall…deny to any person within its jurisdiction the equal protection of the laws." Having different abortion laws in various states keeps poor women in states with restrictive laws from having access to abortions, while wealthier women can travel elsewhere to have a legal and safe abortion.
  2. The Fourteenth Amendment says "No State shall…deny to any person within its jurisdiction the equal protection of the laws." If a fetus is a person from conception, then the Fourteenth Amendment guarantees equal protection of the laws.  The life of the fetus must be considered as having equal weight with the life of the mother.  Thus the state has a compelling interest in protecting the life of the fetus.
  3. The Fourteenth Amendment says "No State shall…deprive any person of life, liberty, or property, without due process of law…." This clause has been interpreted in some cases to guarantee substantive due process.  This means that the government cannot infringe on liberty without proving a compelling interest and any law that infringes on liberty has to be very narrowly crafted.  Any law that infringes on a protected liberty interest, in this interpretation of the Fourteenth Amendment, is presumed to be unconstitutional and the State has to jump a high hurdle to prove otherwise.
  4. The Texas abortion law declaring that a woman cannot have an abortion unless her life is in danger is too vague.  Doctors may not know precisely when they are breaking the law when performing an abortion.
  5. The First, Fourth, and Fifth Amendments apply to the States.  Though these Amendments do not mention the right of privacy, privacy is fundamental to the exercise of the rights that are explicitly mentioned.  As such, privacy is protected by the penumbras of the First, Fourth, and Fifth Amendments:
    • The First Amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
    • The Fourth Amendment says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…."
    • The Fifth Amendment says "No person shall…be compelled in any criminal case to be a witness against himself…."
  6. The Ninth Amendment says "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." The Framers did not want the Bill of Rights to be an all-inclusive list of the rights that people in the United States have.  The Ninth Amendment says that people retain other rights that are not explicitly listed in the Constitution.  Among these rights may be the right to privacy, which would include freedom of choice in the basic decisions of one’s life.
  7. It has long been an acknowledged role of the state to safeguard health and regulate medical practices.
  8. The U.S. Constitution does not explicitly mention any right of privacy.
  9. For the U.S. Supreme Court to determine when, where, and how an abortion should occur would be to overstep its authority as a court.  It is the job of state legislatures to determine how abortions should be regulated, not federal courts.
  10. The use of the word “person” in the U.S. Constitution as it was drafted does not include a fetus.  Thus, the Fourteenth Amendment cannot be construed to protect the unborn.
  11. As a pregnancy progresses, the interest of the state in protecting the health of the mother and the life of the fetus becomes more “compelling.”

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