Roe v. Wade

The Constitution does not directly address abortion. In my opinion, this remands any laws related to abortion to the State. While I am decidedly pro-choice, I have always viewed Roe v. Wade as judicial usurpation of State's rights. I have long sought a Constitutional argument to support my pro-choice views. Chester Gillings, a Coloradoan who is decidedly pro-Life, presents a Constitutional argument favoring Roe v. Wade.  I present excerpts from Chester's arguments:

Several times abortion (Roe v Wade) has been brought up as a usurpation of state prerogative by the federal government. I would like to show to the contrary, that the Court in Roe was very mindful of State's rights, that it upheld states rights, but that it recognized a right which was superior to ether the rights of the state or of the federal government. It is a well settled matter that in the republican theory of government the citizens obtain the rights as a matter of nature and not as a grant from the government (emphasis mine), and that government exists only upon the expressed consent of the governed. Government can make no laws which restrict the rights of an individual unless they are to perform a legitimate public interest. Under such circumstances the law must be narrowly defined to accomplish the public interest without imposing undue hardship on individuals.

In Roe the Court found that the State of Texas did not show a legitimate public interest in prohibiting first trimester abortions. Texas claimed as one argument that it was to protect women form risky surgical procedures, the respondents demonstrated that the risks associated with an abortion were not significant enough to warrant prohibition, and that the risks were properly a matter to be weighted by the woman and her physician. Texas claimed also that the state had a duty to protect unborn human life, claiming that life began at conception. The court explored this matter seriously, and concluded that scientific, religious, legal and philosophical authorities differed widely on the subject - most not supporting the life at conception claims. The Court did find that the states had the right to regulate the practice of abortion at all times, that this regulation could include increasing restrictions on abortions at different stages of the pregnancy - up to and including a total prohibition of abortions (with provisions for the life and health of the mother) after the fetus reached 'viability'.

In Roe, the Court was not balancing the rights of the State and the Fed, rather the Federal Courts were acting properly in their role by balancing the rights of the individual against the rights of the state, and then by attempting to balance the competing rights of two individuals (the mother and the fetus). The abortion question really points out the role of the Federal Government in protecting the rights of the individual against an intrusive state government. Many states have elected judges which are tempted to respond to the will of the majority at the expense of minorities and individuals.

A Jury Story - Guy McLendon