“No contemporary issue has inflamed the country

“No contemporary issue has inflamed the country, Congress, and the courts more than the right of a woman to abort her pregnancy” (Fisher 936). Today, abortion continues to remain a controversial issue in United States culture and politics. There have been many cases regarding abortion that have reached the Supreme Court. The topic of abortion is a complex issue for the court. There are many cases where the Supreme Court was divided, and this is provided through the dissents. Abortion issues should be left up to each individual state. The courts should have nothing to do with it.
In 1973, the case of Roe v. Wade reached the Supreme Court. A Texas resident, Roe, sought to terminate her pregnancy by abortion. However, Texas law made abortion a criminal offense, except to save the woman’s life (Fisher 946). On a 7-2 vote, the U.S. Supreme Court legalizes abortion, overturning all state abortion law bans. In this case, the Supreme Court ruled that allowing abortions to only save the woman’s life violated due process. The Court said that due process protects the right to privacy and the woman’s right to terminate her pregnancy (Fisher 937). Furthermore, a woman’s right to privacy is protected by the Fourteenth Amendment (“Roe v. Wade). One of the justices who dissented in this case was Justice Rehnquist. In his dissent, Justice Rehnquist argues that the drafters of the Fourteenth Amendment did not intend for the amendment to protect the right of privacy. This is due to the fact that the right of privacy was not a right recognized by the framers. In addition, Rehnquist states that abortion is an issue that requires a careful balance between the interests of the woman and the state. Rehnquist strongly holds that the decision should not have been made by the Court. Instead, it should have been left to the legislatures of the individual states (Landmark Cases of the U.S. Supreme Court). Justice Rehnquist’s dissents helps to support my argument that anything to do with abortion should be left up to the states.
Even though abortion was declared legal in Roe v. Wade, it can be regulated by states to varying degrees. Another important case regarding abortion is Planned Parenthood v. Casey. This case reached the Supreme Court in 1992. Pennsylvania law required a 24 hour waiting period before abortion and minors must get permission from their parents. In addition, a wife had to tell her husband about her intention to have an abortion (“Planned Parenthood of Southeastern Pennsylvania v. Casey). In this case, the justices established a new standard, called the “undue burden” standard to determine the validity of state laws that restricted abortions. Under this new “undue burden” standard, regulations for abortion before the fetus attains viability would be deemed unconstitutional if it imposed an undue burden on the woman’s right to an abortion (Liu). Applying the undue burden standard in this case, the only part of the Pennsylvania law that failed the test was the requirement of a woman to notify her husband (“Planned Parenthood of Southeastern Pennsylvania v. Casey”). Justice Scalia was one of the justices who dissented in this case. In his dissenting opinion he declares, “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good remaining.” (Fisher 956). Justice Scalia is arguing that the court should get out of the area of abortion. In his perspective, the court has no right to be involved in abortion. Justice Scalia’s dissent in this case further supports my argument that the court should not deal with matters of abortion. Anything regarding abortion should be decided by the states.
The case of Stenberg v. Carhart reached the Supreme Court in 2000. There was a Nebrska law that banned “partial birth abortion” (“Stenberg v. Carhart”). “The term “partial birth abortion” refers to a procedure known in the medical community as “dilation and extraction,” which involves terminating a pregnancy by partially extracting a fetus from a uterus, then collapsing its skull and removing its brain” (Liu). In Nebraska, the procedure was only allowed if it was necessary to save the woman’s life. Any violations of the Nebraska law are considered a felony. Dr. Leroy Carhart, a physician, brought suit charging that Nebraska’s law violates the constitution. Dr. Carhart claimed the law placed an undue burden on a woman’s right to choose to have an abortion. In a 5-4 decision, the statute was ruled unconstitutional. The law was struck down because an undue burden was placed on the female patients seeking an abortion (“Stenberg v. Carhart”). Justice Scalia also dissented in this case. In his dissent Scalia expresses, “If only for the sake of its own preservation, the Court should return this matter to the people—where the Constitution, by its silence on the subject, left it—and let them decide, State by State” (Fisher 958). As seen in many of his dissents, Scalia strongly believes matters of abortion should be dealt with by the people, not the court.
Thornburgh v. American College of Obstetricians and Gynecologists is another Supreme Court case where the dissents are important to consider. In 1982, Pennsylvania created legislation that placed restrictions on abortion. Pennsylvania law required the informed consent of the woman, dissemination of information concerning the risks of abortion, and use of certain medical techniques after viability. The Court ruled that the requirements of the Pennsylvania law “wholly subordinate constitutional privacy interests and concerns with maternal health and were attempts to deter women from making their own choices concerning abortion” (“Thornburgh v. American College of Obstetricians and Gynecologists”). Justice White’s dissenting opinion in this case is important to note. In his dissent Justice White argues, “Abortion is a hotly contested moral and political issue. Such issues, in our society, are to be resolved by the will of the people, either as expressed through legislation or through the general principles they have already incorporated into the Constitution they have adopted. Roe v. Wade implies that the people have already resolved the debate by weaving into the Constitution the values and principles that answer the issue. As I have argued, I believe it is clear that the people have never-not in 1787, 1791, 1868, or at any time since-done any such thing. I would return the issue to the people by overruling Roe v. Wade” (citation). Justice White is essentially concluding that the issue of abortion should be returned to the states.
The court should get out of the area of abortion. Abortion issues should be left up to the states. Before 1973, prior to the case of Roe v. Wade, the individual states were allowed to decide if abortion would be legal or not within their borders. At that time, many states banned or severely restricted abortions (Liu). Things changed when Roe v. Wade came along in 1973. In this case, the U.S Supreme Court legalized abortion, overturning all state abortion law bans (Liu). Although abortion was declared legal in Roe v. Wade, states are still allowed to place restrictions on it to varying degrees (Liu). As seen in the dissents discussed in this essay, many of the justices feel that the court should get out of the area of abortion and that decisions regarding abortion should be left to the states. In his dissenting opinion in Roe v. Wade, Justice Rehnquist concludes that the abortion issue requires a careful balance between the interests of the woman and the interests of the state (Landmark Cases of the U.S Supreme Court). Each individual state should be able to decide on abortion based on not only their interests, but also the woman’s interests. We should go back to the time before Roe v. Wade where each state was able to decide if abortion would be legal within their borders. Each state knows what is best for its people. It is not fair for the court to decide abortion issues for the states. The states should be able to make the decision for themselves. My position on this issue is more libertarian rather than communitarian. “Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration” (“2016 Platform”). Overall, libertarians believe that government should be kept of out the matter of abortion.
Abortion is a controversial issue in the United States. It is also controversial for the courts. Matters of abortion have no place in the court. Instead, decisions about abortion should be made by each individual state.