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Roe v. Wade: Less about Abortion than Government Intrusion

Roe v. Wade, the Supreme Court decision that a woman has a right to an abortion up to the time a fetus is viable on its own, was decided 40 years ago. Since then, the decision has been controversial. In March, Arkansas, and North Dakota passed laws sharply restricting the right to abortion. North Dakota bans abortions at the sixth week of pregnancy. That's before many women even know they are pregnant.

Challenges to that law will soon be presented in a federal court. The Arkansas law has already been challenged. Last week, a federal judge there temporarily blocked Arkansas from enforcing its law, which bans abortions at the twelfth week. The injunction will remain in place until Judge Susan Webber Wright hears final arguments and rules on the law's constitutionality. She indicated that she will likely rule the law unconstitutional. If so, the standard of Roe v. Wade will be upheld. It permits abortions up to roughly 24 weeks, the time of fetal viability.

In the heat of arguments for and against abortion, it is easy to lose sight of the legal principle upon which Roe v. Wade was decided. For the 1973 Supreme Court, it was not a decision based upon whether abortion is morally right or wrong. In fact, the woman who argued the case specifically told the court,

"We are not here to advocate abortion. We do not ask this court to rule that abortion is good. We are here to advocate that the decision as to whether or not a particular woman will carry…a pregnancy is a decision that should be made by that individual, that in fact she has a constitutional right to make that decision for herself."

Her argument is that women have an inherent right to privacy, one that is constitutionally protected in this country, and that the government, federal or state, cannot intrude upon it. These cases will get to the Supreme Court. It's going to be interesting to see if the court with its conservative majority will uphold the right to privacy of individuals in this context.


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