Ch1 PP3 Managing Social Conflicts (Roe) (1.27.08)

Ch1 PP3 Managing Social Conflicts (Roe) (1.27.08) - Ch1....

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Unformatted text preview: Ch1. Why We Have Law PP3. Management of Social Conflicts Legal Reading Case: Roe et al. v. Wade Court: United States Supreme Court Lesson: One reason we have laws is to manage social conflicts Facts leading to the Case Texas law (i.e., a state statute) makes it a crime to "procure an abortion, or to attempt one, except with respect to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother" Similar statutes were in existence in a majority of the States Facts leading to the Case The Texas Court of Criminal Appeals held that "the State of Texas has a compelling interest to protect fetal life" Jane Roe argued that this law is unconstitutional Roe's Situation Roe was unmarried and pregnant She wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions" Roe's Situation She was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by her pregnancy She could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions Roe argued that: The Texas statutes improperly invade the right, of a pregnant woman, to choose to terminate her pregnancy This right derives from: (1) the concept of personal "liberty" embodied in the U.S. Constitution's th 14 Amendment's Due Process Clause, "[no state shall] ... deprive any person of ..., liberty, ..., without due process of law..." (2) or embodied in the personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights [1st ten Amendments to the US Constitution], or its penumbras, or among those rights reserved to the th people by the U.S. Constitution's 9 Amendment ["The... Constitution...shall not deny (rights) retained by the people"] Courts' Analysis: History of Abortion Laws proscribing abortion, except when necessary to preserve the pregnant woman's life, derive from statutory changes created, for the most part, in the latter half of the 19th century In 1828, New York enacted legislation that, in two respects, was to serve as a model for early antiabortion statutes Barred destruction of an unquickened fetus as well as a quick fetus ("quick" means the first recognizable movement of the fetus in utero) Abortion of an unquickened fetus was only a misdemeanor, but the abortion of a quick fetus was seconddegree manslaughter Abortion was excused if it was necessary to preserve the life of the mother Evolution of U.S. Law U.S. Statutory Law After the Civil War, legislation began to replace the common law U.S. Statutory Law Most of these initial statutes dealt severely with abortion after quickening, but were lenient with it before quickening Most punished attempts to abort equally with completed abortions The typical law required that the procedure be necessary to save the mother's life to escape punishment THE LAW AT THE TIME OF ROE By the end of the 1950's, a large majority of the jurisdictions banned abortion, unless done to save or preserve the life of the mother But, a trend toward liberalization of abortion statutes resulted in adoption of less stringent laws by about 1/3 of the States By the end of 1970, 4 other States had repealed criminal penalties for abortions performed in early pregnancy by a licensed physician Finally, the precise status of criminal abortion laws in some States was unclear because of state and federal court decisions striking down existing state laws, in whole or in part Reasons for the Enactment of U.S. Criminal Abortion Laws in the 19th Century (1) Some argue that these laws were the product of a Victorian social concern to discourage illicit sexual conduct Texas, however, did not advance this justification in Roe, and it appears that no court or commentator has taken the argument seriously Reasons for the Enactment of U.S. Criminal Abortion Laws in the 19th Century (2) Criminal abortion laws protected women from initially hazardous procedures Today abortion in early pregnancy (i.e., prior to the end of the 1st trimester) is relatively safe, although it is not without some risk Reasons for the Enactment of U.S. Criminal Abortion Laws in the 19th Century (3) States have an interest (perhaps a duty) to protect prenatal life, which should prevail unless the life of the pregnant mother is at stake Reasons to Allow Abortion No explicit right to privacy in the Constitution But the right has been found by the Court in the: 1st Amendment 4th and 5th Amendments Penumbras of the Bill of Rights 9th Amendment Concept of ordered liberty guaranteed by the 14th Amendment And, the right has some connection to activities relating to education, marriage, family relationships, and childrearing Thus, the Court held that the right to privacy (as found in the 14th and 9th Amendments) is broad enough to encompass a woman's decision whether or not to terminate her pregnancy Court's Reasoning Woman may suffer medical harm, even in early pregnancy Woman may suffer imminent and longer term psychological harm from pregnancy & more children Mental and physical health may be taxed by child care Unwanted child can distress a family Stigma of unwed motherhood may be involved, and Unborn children have never been recognized as "persons" under the law BUT The Court noted that... A State may properly assert important interests in: safeguarding health, maintaining medical standards, and protecting potential life BUT The Court noted that... The privacy right involved, therefore, cannot be said to be absolute At some point the state interests as to protection of health, medical standards, and prenatal life, become dominant So when can State intrude on the fundamental right to privacy? When there is a compelling state interest When the legislation narrowly drawn After the 1st trimester This is so because until the end of the first trimester death from abortion may be less than death from childbirth I n adopting a trim ste vie the e r w, C ourt rule d: 1st Trimester 2nd Trimester A woman may have an abortion without State interference State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health State may proscribe abortion because the fetus is now viable outside the womb, except when abortion is necessary to preserve the life or health of the mother 3rd Trimester Court's Conclusion Texas law violates the Due Process Clause of the 14 Amendment Issues to Consider In some disputes, what is at stake is much larger than a f ight between two par ties That is, the outcome of the litigation will af fect ever yone because the dispute involves a larger social conflict Social conflicts can involve: Disputes about fact E.g., When is the fetus viable? Social conflicts can involve: Disputes about law E.g., What does the U.S. Constitution's 14th Amendment mean by "liberty" in "... nor shall any state depr ive any person of life, liberty, or proper ty, without due process of law...? E.g., what is legal test for abortion and what should it be? Cour t adopted tr imester test, but later Court adopted the fetal viability test When resolving social conflict cases, courts often look beyond the "four cor ners" of the wr itten law In social conflict cases, courts may tr y to understand the histor y and implication of the case from broader perspectives: E.g., Morals E.g., Custom (typical practices and patter ns of behavior, such as those found in society, the law, predominant religion, and public attitudes) E.g., Ef f iciency Personal costs and benef its Social costs and benef its When courts Economic costs and benef its they are acting more Thus, social conflict cases include more than just simple managing in a procedural way It includes a consideration of the potential outcomes of the dispute management process These outcomes can be short ter m and long ter m, and affect: Litigants Those in similar situations to the litigants Those who interact with the litigants Society The law Q: Name another example of a social conflict case that either has gone to court or is likely to go to court? ...
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