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Abortion Civil Rights

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October 2, 2024 by Tom Roberts, Esq.

image of small infant

Election rhetoric and sound bites do not make for honest dialogue.

Prominent in election rhetoric for 2024 is the issue of a woman’s right to complete autonomy. Kamala Harris stated “So by inference, [Trump] is proud that women have been deprived of fundamental freedoms to make decisions about their own bodies.”  “My body, my choice.” “The right of a woman or girl to make autonomous decisions about her own body and reproductive functions is at the core of her basic rights to equality, privacy, and bodily integrity.” These statements completely ignore the elephant in the room – what protections should society afford to the unborn child?  Why would society prosecute a woman who harms a child by abusing drugs during pregnancy but praise a woman that avoids that prosecution by simply killing the injured child the moment before it is born? 

Contrary to popular opinion even Roe v Wade acknowledged that a woman’s right is not absolute and that she is not entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.*3

Summary of Roe v Wade

In 1973, the US Supreme Court declared unconstitutional state statutes that criminalized abortions.*1. The court stated, “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.” *2. However, even the Roe Court stated that woman’s right is not absolute and that she is not entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. *3. The Roe Court concluded that “the word “person,” as used in the Fourteenth Amendment, does not include the unborn.” *4. The Court stated “it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.” *5. The Roe Court stated “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” *6. The Roe Court concluded “If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. Measured against these standards, …the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.” *7

Summary of Dobbs

In 2022, the US Supreme Court acknowledged that the legal analysis used by the Court in Roe to legislate a national standard was not actually based on sound legal principles and reasoning but that the Court had previously improperly taken on the role of an elitist non-elected legislative body. The Court stated, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997) (internal quotation marks omitted).

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.” *8

The Court concluded, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” *9

Society has never recognized a right of complete autonomy for men or women in disregard of the health, safety and interests of others.

Neither men nor women have the complete autonomy to drink as much as they want and to drive impaired because that sort of autonomy puts the life and property of others at risk.  Neither men nor women can exercise complete autonomy killing whomever and whenever they desire — we refer to such individuals as sociopaths.

In an opinion piece from Tufts University, the author writes of the “regressive state of laws regarding women in the U.S.” and claims “In a society dominated by patriarchal norms, women already have difficulty attaining full autonomy over their choices.”
But the writer does not address that a women’s choice not to abort may straddle a man with 18 years of child support against his will. So much for equality. Society is not willing to recognize let alone discuss the logical and societal inconsistencies, or to discuss whether an unborn child is deserving of protections.  Instead, the rhetoric will claim that opponents of abortion are simply middle aged white men attempting to control women and their bodies.

News flash – the issue is what rights or protections should be afforded an unborn baby and its impact upon autonomy.  Until abortion advocates are willing to address that issue rather than the erroneous self-centered myopic “autonomy” in isolation, no real debate or dialogue is possible.

Opinion of a middle aged white man.

Thomas H Roberts, Esq.
Thomas H. Roberts & Associates, PC
105 S 1st St
Richmond, Virginia 23219
804-783-2002

Tom Roberts, Civil Rights Attorney

Footnotes – Legal References

1 – Roe v. Wade, 410 U.S. 113 (1973) 2 – Roe v. Wade, 410 U.S. 113, 153 (1973) 3 – Roe v. Wade, 410 U.S. 113, 153-154 (1973)(On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute.) 4 – Roe v. Wade, 410 U.S. 113, 158 (1973) 5 – Roe v. Wade, 410 U.S. 113, 159 (1973) 6 – Roe v. Wade, 410 U.S. 113, 159 (1973) 7 – Roe v. Wade, 410 U.S. 113, 163-164 (1973) 8 – Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022) 9 – Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 232 (2022)

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