(no subject)

[sethrak]

Maybe someone with better constitutional-law-fu can help me here.

It's always been my understanding that part of the ruling of Roe vs. Wade was based on the Constitution's guaranteed right to privacy - also the basis of such laws as HIPPA. I never knew precisely where, just as I couldn't tell you which amendment granted women the right to vote. Just that it was in there somewhere.

Right now I'm reading an article from ELLE magazine's website, concerning the Supreme Court's recent decision to uphold a federal law allowing state legislatures the right to criminalize partial-birth abortions, if they so choose. The article refers to the majority decision in Roe as follows:

' Ultimately the Court found the Fourteenth Amendment, guaranteeing personal liberty and protecting privacy, to be the decisive factor: "Maternity, or additional offspring, may force upon the woman a distressful life and future…. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with an unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it." '


I went to the National Archives' website, to read the exact wording of the 14th Amendment.

There's nothing there about protecting privacy.

Much as I hold the conviction that privacy ought to be constitutionally guaranteed, I don't see any backing for it in that amendment. Am I reading it wrong? Or is this one of those legal decisions that extrapolate from what's written?

Here it is:

AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.


I'm going to keep reading the other amendments, in hopes that perhaps ELLE simply made an error in which Amendment they referred to. Anyone who can point me in the right direction would be greatly appreciated.

Comments

[thoth-of-nd.livejournal.com]

*dusts off my old undergrad Con Law textbooks*

Welcome to The Swamp. :D

Privacy (reproductive and otherwise) is a "penumbra" effect, legal precedent for which goes back to Griswold v. Connecticut (the legal citations are 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510) which was decided by the Supreme Court in 1965. I'd suggest that you read the whole thing--you may want to find a convenient law library.

Roe v. Wade (410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147) uses the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to create the "penumbra". Roe is an attempt to balance privacy interests with the state's legitimate interest in potential life, and is set up more or less in a trimester framework. Again, read the whole thing, including Rhenquist's opposing argument.

Its' 1992 successor decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, (112 S.Ct. 2791, 120 L.Ed.2d 674) leans very heavily on the 14th Amendment. They even go into why they chose "stare decisis" to modify Roe, but are unwilling to abandon it altogether. It does make for a long, if fascinating read about the role of the courts in our system of government. Rhenquest's dissenting opinion more or less translates into "We hates the Roe, we does." Scalia's opinion is much more interesting, from a legal perspectve.

Note that this is just a very brief skim of the relevant court cases--I could probably write pages and pages just from the margin notes I have in the textbook. ^^'