Abortion: Federalism and the Right to Privacy
Resources
Questions
1. Describe the abortion bill that was sent to the Mississippi House of Representatives.
The Mississippi House Public Health and Human Services Committee has sent a bill to the full House that would ban all abortions in Mississippi except in cases where the mother's health is at risk.
2. According to Governor Mike Rounds and many legislators and activists, what is the reason behind the creation of the bill banning most types of abortion in South Dakota?
Governor Rounds and others believe that the ruling in the case of Roe v. Wade (1973) should be revisited in light of the confirmation of Chief Justice John Roberts and Associate Justice Samuel Alito to the Supreme Court. He believes that the precedent set in that case will be overturned because of the constitutional viewpoints of the current justices.
3. Why do South Dakota and Mississippi claim they have the authority to enact these laws?
Under the Tenth Amendment to the Constitution, South Dakota and Mississippi have the authority to exercise powers that are not delegated to the United States under the Constitution. While the decision in Roe v. Wade permitted abortion, some state legislators believe that the current precedent unconstitutionally infringes on the powers delegated to them in the Tenth Amendment. Those legislators also disagree with the Supreme Court's decision that the First, Third, Fourth, Ninth as well as Fourteenth Amendments protect the right to privacy and abortion.
4. Summarize the landmark 1973 Supreme Court case of Roe v. Wade. How does the Fourteenth Amendment apply to the issue of abortion (read the Fourteenth Amendment by clicking here)?
The Supreme Court found that the Fourteenth Amendment prevents states from denying an abortion during the first trimester of pregnancy because doing so violates a woman's right to privacy by virtue of the First, Third, Fourth and Ninth Amendments (see Griswold v. Connecticut). Under the Fourteenth Amendment, a state cannot "deprive any person of life, liberty, or property, without due process of law." The word "liberty" in the due process clause of the Fourteenth Amendment includes protection from state intrusion on a citizen's privacy.
5. The Fourteenth Amendment applied Bill of Rights protections against state governments. Read the 1st, 3rd, 4th, and 9th Amendments. Do you believe these amendments imply a right to privacy that states must honor? Why or why not? If so, does the abortion decision fall within the right to privacy?
Yes, the First Amendment allows for freedom of association and conscience even though it is not expressly stated. The Third Amendment protects the people from government intrusion in their home. The Fourth Amendment protects "[t]he right of the people to be secure in their persons," and the Ninth Amendment protects the natrual rights of the people that are not necessarily listed in the Constitution. All of these Amendments, taken into context and incorporated into the states by the Fourteenth Amendment, allow for a right to privacy.
No, the Constitution does not specifically mention a right to privacy, therefore the decision to protect this right is left to the states or the people under the Tenth Amendment. Even if the Constitution did protect a right to privacy, the abortion decision does not come under a right to “privacy.” Under current law, the state retains some authority in making laws prohibiting abortions later than the first trimester of pregnancy.
6. Relying on the Fourteenth Amendment, the Supreme Court has ruled on the following actions taken by state governments.
1) States cannot ban interracial marriage.
2) States cannot segregate public schools by race.
3) States cannot allow only whites to serve on juries.
4) States cannot ban the sale of birth control.
5) States cannot ban homosexual sex between consenting adults.
What guideline should the court use when deciding the constitutionality of state actions that infringe on claimed rights that are not specifically named in the Constitution?
Extensions
- Have students review the history of the Supreme Court and the right to privacy as it relates to reproductive rights. How has the opinion of the court changed over time? How has it remained the same? What are some possible changes in the future?
