scholarly journals The Supreme Court and the Constitutional Right to Privacy

1991 ◽  
Vol 11 ◽  
pp. 105-124
Author(s):  
Neil Snortland
Keyword(s):  
Supreme Court ◽  
Rational Basis ◽  
Reproductive Health Services ◽  
Historical Interpretation ◽  
Department Of Health ◽  
The Press ◽  
The Supreme Court ◽  
Right Of Privacy ◽  
Constitutional Right ◽  
Roe V Wade

Since its creation in 1965, the constitutional right of privacy has been difficult to understand, even contradictory. This may be explained as the result of the incremental implementation of the sweeping language of Griswold v. Connecticut, with privacy coming into conflict with other rights such as the freedom of the press. In addition, the initial criticisms of Griswold’s synoptic privacy reasoning intensified when Roe v. Wade provoked potent political opposition. These influences combined with the changing membership on the Supreme Court to produce an evaporation of privacy language from recent decisions, most notably Webster v. Reproductive Health Services and Cruzan v. Director, Missouri Department of Health. Furthermore, the Court is transforming Roe's declaration of privacy as a “fundamental right” protected by “strict scrutiny” into a “liberty interest” protected by the relaxed standard of “rational-basis scrutiny.” Finally, Rehnquist and Scalia want to give a narrow historical interpretation to any “liberty interest,” thus limiting the application of privacy to other areas of constitutional law.

Roe v. Wade and the History of Abortion Regulation

1989 ◽  
Vol 15 (2-3) ◽  
pp. 227-233 ◽  
Author(s):  
Paul Benjamin Linton
Keyword(s):  
Supreme Court ◽  
Personal Privacy ◽  
Personal Liberty ◽  
Personal Rights ◽  
The Supreme Court ◽  
Right Of Privacy ◽  
History Of ◽  
The Right Of Privacy ◽  
The Right ◽  
Roe V Wade

In Roe v. Wade, the Supreme Court held that “[the] right of privacy … founded in the Fourteenth Amendment's concept of personal liberty … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” The Court acknowledged that “[t]he Constitution does not explicitly mention any right of privacy.” Nevertheless, the Court held that a “right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” However, “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ … are included in this guarantee of personal privacy.”

The Role of Stare Decisis in the Reconsideration of Roe v. Wade

1989 ◽  
Vol 15 (2-3) ◽  
pp. 204-210
Author(s):  
Albert P. Blaustein ◽  
Edward R. Grant ◽  
Ann-Louise Lohr ◽  
Kevin J. Todd
Keyword(s):  
Reproductive Health ◽  
Health Services ◽  
Supreme Court ◽  
Reproductive Health Services ◽  
Stare Decisis ◽  
The Supreme Court ◽  
Abortion Laws ◽  
Roe V Wade

Webster v. Reproductive Health Services represented the first occasion in which a state, defending a challenge to its abortion laws, called for the Supreme Court to reconsider Roe v. Wade. This opportunity presented a two-fold challenge to those engaged in seeking the reversal of Roe through the courts. First was to persuade the Court that Roe had been erroneously decided. Second was to overcome the defense of Roe premised upon stare decisis.Two briefs, representing separate groups of Members of Congress and Senators as amici, were filed on behalf of the appellants, each addressed to one of these challenges.

Judicial Standard of Review and Webster

1989 ◽  
Vol 15 (2-3) ◽  
pp. 211-216
Author(s):  
James Bopp ◽  
Richard E. Coleson
Keyword(s):  
Reproductive Health ◽  
Health Services ◽  
Judicial Review ◽  
Rational Basis ◽  
Reproductive Health Services ◽  
Low Level ◽  
Strict Scrutiny ◽  
Constitutional Right ◽  
Roe V Wade ◽  
Constitutional Analysis

The necessary first step in the judicial review of any state statute is to determine the appropriate standard of review. Without resolution of this threshold issue, the court would be uncertain what constitutional analysis to employ, whether a low level of scrutiny, strict scrutiny or some intermediate standard.Thus, in Webster v. Reproductive Health Services, the Court should not merely assume, without confronting, the continued viability of Roe v. Wade. Failure to reexamine Roe would depart from precedents of the Court and lead to untoward results.In determining the standard of review to be applied to the Missouri statute at issue in Webster, the Court should be guided by the analysis of Bowers v. Hardwick, and find that there is no constitutional right to abortion. Thus, the standard of review to be employed in Webster is the rational basis test. Under this test, the Missouri statute should be upheld.

State Building, Health Policy, and the Persistence of the American Abortion Debate

1997 ◽  
Vol 9 (3) ◽  
pp. 311-338 ◽  
Author(s):  
Helene Silverberg
Keyword(s):  
United States ◽  
Supreme Court ◽  
State Legislatures ◽  
The United States ◽  
State Building ◽  
State Regulation ◽  
Reproductive Health Services ◽  
Abortion Debate ◽  
The Supreme Court ◽  
Roe V Wade

In the years since the Supreme Court handed down its ruling in Roe v. Wade (1973), the abortion controversy has raged across America with increasing vigor. Since Ruth Bader Ginsburg's appointment solidified the Rehnquist Court's moderate bloc, holding the line on Roe's basic principle but inviting more state regulation, the conflict over abortion is likely to expand and intensify in most of the fifty states. The increased and bitter activity since the Supreme Court decided Webster v. Reproductive Health Services (1989), which gave state legislatures more latitude to respond to pro-life pressures, provides only a small indication of what the future may hold. Almost twenty years after Roe legalized abortion in the United States, an end to the “clash of absolutes,” as Laurence Tribe has recently called the American abortion conflict, seems nowhere in sight.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

scholarly journals State Legislatures Have the Courage to Pass Antiabortion Laws and Test the Ideology of the “New” United States Supreme Court

2020 ◽  
Vol 3 (1) ◽  
pp. 136-150
Author(s):  
Jill Oeding
Keyword(s):  
United States ◽  
Supreme Court ◽  
State Legislatures ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Undue Burden ◽  
Constitutional Right ◽  
Reported Data ◽  
The Right

Many state legislatures are racing to pass antiabortion laws that will give the current Supreme Court the opportunity to review its stance on the alleged constitutional right to have an abortion. While the number of abortions reported to be performed annually in the United States has declined over the last decade, according to the most recent government-reported data, the number of abortions performed on an annual basis is still over 600,000 per year. Abortion has been legal in the United States since 1973, when the Supreme Court recognized a constitutional right to have an abortion prior to viability (i.e. the time when a baby could possibly live outside the mother’s womb). States currently have the right to forbid abortions after viability.  However, prior to viability, states may not place an “undue burden” in the path of a woman seeking an abortion. The recent appointments of two new Supreme Court justices, Neil Gorsich and Brett Kavanaugh, give pro-life states the best chance in decades to overrule the current abortion precedent. The question is whether these two new justices will shift the ideology of the court enough to overrule the current abortion precedent.

scholarly journals Evoluzione della giurisprudenza costituzionale statunitense in materia d’aborto (II)

2011 ◽  
Vol 60 (5) ◽  
Author(s):  
Fabio Persano
Keyword(s):  
United States ◽  
Supreme Court ◽  
Single Case ◽  
The United States ◽  
Planned Parenthood ◽  
Abortion Debate ◽  
The Supreme Court ◽  
Long Time ◽  
The Right ◽  
Roe V Wade

Negli Stati Uniti il dibattito sull’aborto è sempre un tema molto caldo. Questo saggio, diviso in due parti (la prima parte è stata pubblicata sul precedente numero della rivista) prova a ripercorrere l’evoluzione della giurisprudenza costituzionale statunitense in materia d’aborto, evidenziando i cambiamenti che ciascuna decisione ha apportato al quadro giuridico precedente. In questa seconda parte, la dissertazione sui singoli casi giurisprudenziali decisi dalla Suprema Corte prosegue con il caso Planned Parenthood v. Casey. Esso è stato una vera occasione mancata nella storia dell’aborto negli Stati Uniti, perchè venne sfiorata la overrule di Roe v. Wade. Ciononostante, venne sostanzialmente confermato l’impianto delle decisioni precedenti, in considerazione del fatto che una decisione contraria all’aborto avrebbe spiazzato un popolo che per decenni aveva organizzato la propria vita in funzione anche della possibilità di abortire. Con questa decisione si distinse la gravidanza in due periodi: quello della pre-viabilità, in cui la donna era completamente libera di abortire in accordo col medico; quello della post-viabilità, in cui gli Stati avrebbero potuto legiferare, pur dovendo consentire l’aborto nel caso di pericolo per la vita o la salute della madre. Inoltre il diritto d’aborto venne radicato nella libertà riconosciuta nel XIV Emendamento della Costituzione. Nel successivo caso Stenberg v. Carhart fu oggetto di giudizio l’aborto a nascita parziale: una legge del Nebraska aveva bandito questa pratica, ma la legge fu annullata dalla Corte Suprema, nonostante il duro dissenso di ben quattro giudici, fra cui Anthony Kennedy. Successivamente a questa decisione, il Congresso prese l’iniziativa di emanare il Partial Birth Abortion Ban Act. Questa legge fu impugnata in via d’azione davanti alla Corte Suprema e ne scaturì la sentenza Gonzalez v. Carhart. In questa decisione la Corte fece un passo indietro rispetto a Stenberg, affermò la legittimità del bando, sostenne che l’aborto a nascita parziale non è mai necessario per tutelare la vita della donna e che Stenberg era fondato su convinzioni erronee sul punto. Il saggio si conclude con delle interessanti considerazioni in merito ai possibili sviluppi futuri circa il tema dell’aborto negli Stati Uniti, auspica la “liberalizzazione del diritto alla vita” ed avanza una originale proposta, valida per tutti i Paesi in cui l’aborto è legalizzato. ---------- Abortion debate is always a hot subject in the United States. This essay, divided into two parts (the first part has been published on the previous issue of this review) tries to go along the development of U.S. constitutional caselaw about abortion, pointing out the change that each judgement caused to the previous law framework. In this second part, the dissertation about U.S. Supreme Court single case-law goes on by Planned Parenthood v. Casey. It was a real missed occasion in the abortion affair in the United States, because it was on the verge of overruling Roe v. Wade. However, the framework of the previous cases was substantially confirmed, considering that a decision against abortion would place out people who for a long time organized their own life in connection to the right of abortion. By this judgement, pregnancy was divided into two periods: pre-viability, when woman was completely free to have an abortion in agreement with her doctor; post-viability, when States could restrict abortion, except for woman life or health risks. Moreover, abortion right was founded on liberty, acknowledged by XIV Amendement. In the following case Gonzalez v. Carhart, partial-birth abortion was judged: a statute of Nebraska banned this activity, but it was stroked down by Supreme Court, despite of the dissenting opinion of four judges (Anthony Kennedy was one of them). After this judgement, the Congress wanted to issue Partial Birth Abortion Ban Act. This statute was pre-enforcement challenged to the Supreme Court, and Gonzalez v. Carhart was poured. In this judgment, the Court drew back Stenberg, it stated the ban was legitimate, partial-birth abortion never is necessary to safeguard woman health, and Stenberg was founded on wrong beliefs on this matter. This essay concludes with interesting considerations about possible developments about abortion affair in the United States, wishes “liberty of right to life” and proposes a solution for all the countries where abortion is legal.

BECOMING HUMAN

PEDIATRICS ◽  
1978 ◽  
Vol 62 (1) ◽  
pp. 7-7
Author(s):  
Christopher Jenks
Keyword(s):  
Supreme Court ◽  
The Body ◽  
Human Suffering ◽  
Right To Life ◽  
The Supreme Court ◽  
Arbitrary Decision ◽  
Real Person ◽  
The Right ◽  
Roe V Wade

Opponents of abortion sometimes argue that a fetus "wants" to grow up into a real person. But every egg and sperm also "want" to become a person in this sense. And if that is the case, how can one defend either contraception or celibacy, both of which deny life to millions of eggs and sperms that "want" to become people, and both of which also involve repression of "natural" impulses? The question of whether abortion is morally wrong depends on when we become "human." Unfortunately, this does not happen all at once, as in medieval fantasies of the soul's entering the body. It happens bit by bit. We must therefore make some arbitrary decision about when to confer the "right to life." Because nature offers no clear guidance about where this line should be drawn, the most humane solution is to draw it so as to minimize human suffering. I doubt, however, that opponents of abortion will accept this approach, for once you accept it, you will almost inevitably be led to precisely the same "liberal" conclusion the Supreme Court reached five years ago in Roe v. Wade.

Shaping Policy Through Litigation: Abortion Law in the United States

1993 ◽  
Vol 39 (2) ◽  
pp. 167-183 ◽  
Author(s):  
Kathryn Ann Farr
Keyword(s):  
United States ◽  
Supreme Court ◽  
Legal Status ◽  
The United States ◽  
Abortion Policy ◽  
Abortion Law ◽  
The Supreme Court ◽  
Roe V Wade

The criminalization of abortion in the United States began in the early 1800s and was nearly universal by the late 1800s. It was not until the middle of the 1900s that abortion reform gained momentum, culminating in 1973 in the Roe v. Wade decision that protected women's right to abortion. In this article it is argued that since Roe, litigation has been increasingly used to shape abortion policy. The rise of such litigation, as well as the kinds of issues and concerns raised by litigants, are described. The role played by the Supreme Court in changing the legal status of abortion is examined.

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