CAS PH 251 Lecture Notes - Lecture 12: Fetus, Planned Parenthood, Originalism
2 May 2018
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Abortion: Key Constitutional Cases
Roe v. Wade (1973)
• Overview:
o Parties to the Case – Roe & Wade
o Remedy Sought – Roe (Noma McCovey) is a married woman who wants to
terminate her pregnancy and eventually sued Texas for not allowing her to do so
(due to the Texas statues criminalizing abortion in cases where a mother’s life is
not threatened is unconstitutional
• Question: Does the state have a legitimate interest in regulating abortion? (if not, no need
to go further, but if so, then a fundamental right is at stake)
o What is the purpose of the Texas law (Arguments):
▪ To discourage illicit sexual conduct
▪ To protect women from the dangers of the medical procedure
▪ To protect the life (or potential life) of the fetus
o Counterarguments
▪ There can be sexual conduct between a husband and wife
▪ Abortion in the first term is safer than a later one
o The third argument is the only justifiable one
• Main Legal Questions:
• Do Texas laws prohibiting abortion violate…?
o 1. The right to liberty guaranteed by the 14th Amendment (substantive due process
clause)
▪ 14th Amendment: “…nor shall any State deprive any person of life, liberty
or property, without due process of law…”
▪ This is a matter of procedural due process v. substantive process
• Procedural Due Process – there are certain liberties that cannot be
infringed regardless of the process they undergo
• Substantive Due Process – there are certain liberties that the state
can’t infringe on no matter how substantial the process is
o 2. The right to privacy guaranteed by the ‘penumbra theory’ of the Bill of Rights
and/or the 14th Amendment
▪ ***THIS IS THE WHERE THE COURT FOUND TEXAS AT FAULT
(essentially found the right to privacy through this reasoning)
▪ Question: Where do you find the right to privacy?
▪ Theories:
• Penumbra Theory – the right to privacy is found through
interpretation of various other bill of rights amendments whose
‘penumbras’ or shadows suggest a right to privacy
• 14th Amendment Substantive Due Process – ex: right to
contraceptives, right to marry, right to homosexual marriage, right
to pornography, etc.
o All these examples hint at personal autonomy/privacy
o 3. The rights reserved to the people under the 9th amendment
▪ ***THE COURT DOES NOT FIND THE RIGHT TO PRIVACY HERE
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