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Roe and Judicial Review by Barath Nagarajan Jul 12, 2014 – 9:46pm

Roe v. Wade and Judicial Review of State Laws          

     In addressing the decision in Roe v. Wade and whether unelected Supreme Court justices should strike down laws passed by duly and democratically elected legislatures, we must look at how the Supreme court has developed its review of legislation passed by the States, and ask why is the right to review acts by State legislatures necessary in the Constitutional scheme of American government? In addition two relevant questions must be addressed. First, what is a fundamental right and why does the Supreme Court have authority to strike down state laws? Secondly, is abortion a right that fits into the former category?

In United States v. Carolene Products, 304 U.S. 144 (1938) Justice Stone’s famous footnote number 4 said:

1.There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution,  such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

Certain rights which have been ranked as fundamental have been removed from the whims of transient majorities. After all that is the purpose of having a Constitution with a Bill of Rights. Rights that are considered fundamental are “implicit in the concept of ordered liberty” and have been “brought within the Fourteenth by a process of absorption” because they are so rooted in the “traditions and conscience of our people” to be ranked as fundamental, such that “neither liberty nor justice would exist if they were sacrificed.” Palko v. Connecticut, 302 U.S. 319(1937). These rights are protected against infringement by the State governments as well as the Federal, and certainly include those enumerated in the first ten amendments or the Bill of Rights. That is not to say these rights are absolute.

 In striking down the Maryland procedure of retrying a defendant for larceny and burglary after he had been acquitted of the larceny charge, in Benton v. Maryland, 395 U.S. 784(1969) Justice Marshall wrote for a majority of the Court:

“Once it is decided that a particular Bill of rights guarantee is fundamental to the American scheme of justice, the same constitutional standards apply against the state and federal governments. Like the right to trial by jury the guarantee against double jeopardy is clearly fundamental to the American scheme of justice.”

The Court also struck down a Florida practice of trying indigent defendants, except in capital cases, without appointing counsel in Gideon v. Wainright,372 U.S. 335(1963) holding that the sixth amendment right to counsel is “ fundamental and essential to a fair trial” and so is made “ obligatory upon the states by the Fourteenth Amendment.”

Through judicial interpretation that a right of privacy exists whether as a substantive due process right or as a product of combining amendments to create “ zones of privacy “ the right to privacy may be included as fundamental, Griswold v. Connecticut,381 U.S. 479(1965). Thus the justices of the Supreme Court may in certain cases be justified in removing established rights from simple majoritarian rule or the reach of state legislatures. The question then is, “Is the right to abortion one of these fundamental rights?”

In Roe v. Wade the Supreme Court fashioned the contours of the right to abortion around privacy, a trimester framework, and life of the mother, versus the viability of the fetus and the state’s interest in protecting potential life. The article compares the abortion decision with the same sex marriage issue now in courts. It is faced with the question, “Is same sex marriage like abortion?”, and whether like the Roe decision they are entering into a political thicket which would be better handled by the legislative bodies. I would argue that they are, but not because of the decision in Roe, but because it was overruling the decision in Bowers v. Hardwick which opened up the political controversy over gay marriage and not the Roe decision. Nevertheless, the Court has never held that because the political branches could resolve an issue that it removed the issue from judicial interpretation.

When the Court is dealing with a legitimate constitutional question inhering to the Supremacy of federal law or the Constitution, it may interpret what people’s rights are and where the State’s police power ends. In Roe, I argue that no legitimate federal question or fundamental right was posed. For example if I go to the doctor and ask him to take my kidney out and he runs tests and finds my kidneys are healthy. I then maintain that I am sure it is my kidney that is the problem. Do I still have the right to have my kidney removed? The doctor should say, “I will not remove a healthy organ.” If he did remove a healthy organ the medical ethics board or state law should hold the doctor liable. Why not the same standard or an even stricter one when dealing with a healthy fetus?

Thus decisions which are by their nature medical and not inherently constitutional questions should not end up in the creation of constitutional rights created by and based upon judicial interpretation. The question then is that State governments can restrict the discretion of when doctors can advise the desirability of abortion. Some argue the Supreme Court should make decisions like right to abortion or gay marriage because they believe it to be a right of freedom of choice, liberty, or an issue of privacy in control of one’s own body or reproductive health. Opponents argue that it is not just the mother’s freedom or reproductive health but the life of another human being that the mother only carries within her for the maternal cycle of nine months.

As in the case of removing a healthy organ I don’t see a legitimate constitutional question unless the organ was unhealthy and the doctor recommended under medical ethical guidelines it be removed. In fact under the substantive due process or privacy framework in Roe there would be an even greater right to remove a healthy organ because it is your body and your privacy or health and does not involve the health of another life, the potential life in the form of the fetus or unborn child.

Abortion then should be treated as other medical questions as Roe decision claims to do. “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” Roe v. Wade, 410 U.S. 113(1973).But, abortion is not treated as other medical decisions; it is treated as a constitutional right, which means doctors and hospitals cannot restrict the right to abort a fetus in the first trimester or before.

If abortion were treated as other medical decisions women could only have an abortion if a doctor recommended its medical necessity and then only in accordance with medical ethics and medical licensing practices in their state. After that, the decision would be the woman’s choice. If doctors aborted a healthy fetus they could face suspension of their license to practice medicine or criminal penalties following from State law.

Why interject a constitutional right where it does not belong other than to say it depends on the doctor/patient relationship and the ethical guidelines set by the state licensing board to practice medicine in a state, professional review boards where the profession polices its own misconduct, and state laws governing medical practice? In order for State regulation of medical practices and professional ethics regarding abortion to work there needs to be uniform federal or professional guidelines.

On the question of whether a State legislature or the unelected justices of the Supreme Court should make the decision on these questions my argument is that where the Supremacy of the Constitution or federal law is concerned and a right is fundamental, the Court should exercise its power to review State legislation and strike it down when appropriate. Otherwise the Court would abdicate it position to balance the power between the State and Federal government and the protection of individual liberties. Important rights of federalism as well as individual rights would be lost.

In conclusion the Supreme Court has the right to review acts of State legislatures when those acts are incompatible with the Constitution. In doing so the Court balances the Powers of the State and Federal government and protects the Supremacy of federal law and the Constitution as well as an individual person’s liberty. These rights courts have deemed to be fundamental and to violate them would be inherently unjust. Is abortion one of these rights? That question is the source of much debate, originally decided in Roe v. Wade in the affirmative, there are still strong feelings on both sides and will be the subject of future rulings of the Court.

see also:

Adam Liptak, (2013/03/23). “Shadow of Roe v. Wade Looms over Ruling on Gay Marriage”.  The New York Times. Retrieved from: 

www.nytimes.com/…/roes-shadow-as-supreme-cou..

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