Arguments for Roe:
1. The Texas law
infringes upon the right of privacy recognized in Griswold.
---Griswold protected
the decision whether or not to bear a child.
---This is a liberty
protected by the due process clause, or an unenumerated right protected
by the Ninth Amendment
2. The right
to an abortion should be recognized as a fundamental right triggering strict
scrutiny because of the great impact childbearing and childbirth has on
a woman's life.
---Risk to a woman's
health of childbirth (during first trimester, abortions have a death rate
that is more than five times lower than the risk of death to mothers from
childbirth.)
---Unwanted pregancies
disrupt life (financial burdern, psychological burden, physical experience
of pregnancy itself, stigma of being an unwed mother)
3. The Texas law
violates the fundamental right of doctors to give medical care.
---State could not
deny treatment of venereal disease as a means of discouraging promiscuity
---State could not
ban all forms of surgeries
4. The Texas law
is not supported by a compelling state interest.
---Interest in protecting
fetal life not compelling because fetuses have no rights under Texas law
and self-abortions are legal (women seen as victims under Texas law)
---Interest in preventing
promiscuity is not very important and not closely-tailored to this law
---Interest in protecting
mother's health does not justify total ban, only regulation to increase
safety of procedure
5. Fetuses are not
"persons" within the meaning of the Fourteenth Amendment.
---Abortions more
common in 1868 than in 1973, therefore could be no intent to make fetuses
persons
---"Persons" elsewhere
in Constitution clearly refers to persons after birth, as it the enumeration
(or census) clause.
6. The Texas law
is unconstitutionally vague.
---Doctors have to
guess as to whether or not an abortion procedure is criminal (What if it
shortens a woman's life? What if there is a 20% chance that childbirth
might result in the mother's death? What if continued pregnancy increases
significantly the risk of suicide?)
7. The law is not
moot simply because Jane Roe is no longer pregnant.
---Can't get this
case decided by Supreme Court in less than nine months, so this fits within
exception for cases "capable of repetition, yet evading review"
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Arguments for Texas:
1. There is no right
to an abortion in the Constitution.
---No mention in text
---Nothing to suggest
that framers of Fourteenth Amendment intended to protect such a right
2. Griswold protected
marital privacy, not the right to choose an abortion
---Abortions are performed
in a hospital or clinic by a virtual stranger, not a matter of privacy
as in Griswold
3. Even if the right
of privacy is implicated, Texas' law is supported by a compelling state
interest.
---Compelling state
interest in protecting human life (life is a process that begins at conception
and ends at death)
---Who wouldn't say
that there isn't a strong interest in banning abortions during the last
month of pregnancy, and if that's true, why is the interest less strong
a few months earlier? (The response might be that in the early months of
pregnancy, the fetus lacks the essential attributes of humanness--such
as the ability to have thoughts or experience pain)
---Interest in preserving
respect for life, and in not making morally wrong behavior (such as infanticide)
more likely
4. A fetus is a
"person" within the meaning of the Fourteenth Amendment, so a statute permitting
abortions would "deprive" a person of "life," a practice prohibited.
---(Problem: there's
little or no support for this argument and such an interpretation would
mean that liberal abortion laws were blatantly unconstitutional)
5. Texas law is
not unconstitutionally vague.
---Any statute has
some vagueness, but this one clearer than most
---A statute which
allowed abortions if necessary for the "health" of the mother would be
more--not less--vague
6. Challenge is
moot because Jane Roe is no longer pregnant
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