Basically Law

Read the case here.

Background. Most people are well versed in what was involved in this case.  Basically, the case was a challenge to Texas's criminal abortion statue which penalized anyone procuring an abortion except to save the life of the mother.  The District Court had ruled that the statute violated the Ninth Amendment (reservation of rights) which was applicable to the states through the 14th Amendment (incorporation).  The ruling was appealed to the Supreme Court (there is a whole bunch of procedural issues, standing and the like that are involved, but are unimportant for this analysis).

Supreme Court Analysis.  In an opinion written by Justice Blackmun, the Court recognized that a woman had a "liberty" right to decide to terminate her pregnancy under the 14th Amendment.  Actually, Justice Blackmun noted that the right could either come from the 14th Amendment or the 9th Amendment - but not all the justices in the majority agreed with that analysis.  Therefore, the right stems from the 14th Amendment (. . .nor shall any State deprive any person of life, liberty, or property, without due process of law. . .).

At the same time, Justice Blackmun recognized that this "liberty" right needed to be balanced with the State's interest in protecting the health of the mother and the health of the unborn child.  As the fetus develops, the State's interest in protecting the health of the unborn child begins to outweigh the "liberty" right of the mother.  Therefore, the Supreme Court set up a trimester scheme of how much and what type of regulation a state may impose on abortion during each trimester of pregnancy.  The scheme has been interpreted in subsequent cases but it still pretty much remains in effect today.

To back track, let's examine where this "liberty" interest comes from.  The Court recognized that there has been a recognized right to privacy in the Constitution - call it the penumbras from the Bill of Rights or what have you.   The Court had recognized the right in cases involving contraception, marriage, and pornography in the bedroom.  The Court also noted that right to "liberty" was not absolute and the State could regulate that right if there was a compelling State interest.  No where does the Court elaborate on what exactly is the parameters of this "liberty" right or "privacy right".

My Analysis. I, like most people, find something very wrong in the reasoning of this case.  While I do believe in a "liberty" right and even a right to privacy in the Constitution (I prefer the 9th Amendment), the Court needs to define the parameters of this right, to come up with some guiding principles of what this right actually encompasses.  If it does not, then the rights are basically what the Courts believe them to be at any given time.  You see that in the two Supreme Court decisions involving sodomy laws - Bowers and Lawrence.  To me it is inconceivable that there a "liberty" right to have an abortion but not such a right to engage in consensual sexual relations (as Bowers found in 1986, 13 years after Roe).  This demonstrates the difficulty in just assessing certain activities as a protected "liberty" or "privacy" right without defining the principled of that right.

Personally, I tend toward favoring a 9th Amendment liberty right (and the 14th Amendment also) for an individual to do as he or she chooses as long as she does not harm the rights of another.  Yes, that would call for a balancing of interests among individuals, but the Courts can do that.  The State's only interest in the equation is that had narrowly tailored legislation to protect the rights of the individuals beings harmed by another's activity.  It may not be perfect, but at least it is a principle.  Now, would it change the equation in this case - probably not since abortion does harm the rights of another - the unborn child.  It only begs the question of when does the unborn child has recognizable rights that need protecting.  Well, I am not touching that here.  If forced - I would leave it up to the political process.