Friday, December 5, 2008

jurisprudence: roe v. wade revisited

with the current bruhaha over proposed house bill on reproductive health, the revisiting of roe v. wade is deemed unavoidable...

chances are if the controversy goes the distance, the supreme court will have the opportunity/occasion to decide on the issue...knowing the court's inclination/penchant to resort to american jurisprudence, the case will definitely carry much weight...

legal case, decided in 1973 by the U.S. Supreme Court, that held unduly restrictive state regulation of abortion to be unconstitutional. In a 7–2 vote the Supreme Court upheld the lower court's decision that a Texas statute criminalizing abortion in most instances violated a woman's constitutional right of privacy, which the court found implicit in the liberty guarantee of the Due Process Clause of the Fourteenth Amendment. The case began in 1970 when Jane Roe (a fictional name used to protect the identity of Norma McCorvey) instituted federal action against Henry Wade, the district attorney of Dallas county, Texas, where Roe resided. The court disagreed with Roe's assertion of an absolute right to terminate pregnancy in any way and at any time and attempted to balance a woman's right of privacy with a state's interest in regulating abortion. The court stated that only a “compelling state interest” justifies regulations limiting “fundamental rights” such as privacy and that legislators must therefore draw statutes narrowly “to express the legitimate state interests at stake.” The court then attempted to balance the state's distinct compelling interests in the health of pregnant women and in the potential life of fetuses. It placed the point after which a state's compelling interest in the pregnant woman's health would allow it to regulate abortion “at approximately the end of the first trimester” of pregnancy. With regard to fetuses, the court located that point at “capability for meaningful life outside the mother's womb,” or viability. The court held that the Texas statute was unconstitutional because of its breadth. Repeated challenges since 1973, such as Planned Parenthood v. Casey (1992), have narrowed the scope of Roe v. Wade but have yet to overturn it.


legal case, decided by the U.S. Supreme Court in 1992, that redefined several provisions regarding abortion rights as established in Roe v. Wade.

In 1988 and 1989 the Commonwealth of Pennsylvania, led by Governor Robert Casey, enacted new abortion statutes that required that a woman seeking an abortion give her informed consent, that a minor seeking an abortion obtain parental consent (the provision included a judicial waiver option), that a married woman notify her husband of her intended abortion, and, finally, that clinics provide certain information to a woman seeking an abortion and wait 24 hours before performing the abortion. Before any of these laws could take effect, Planned Parenthood of Southeastern Pennsylvania brought suit against the governor, protesting the constitutionality of the statutes.

In a 1992 plurality opinion, the U.S. Supreme Court affirmed the “essential holding” (i.e., the basic principle) of Roe v. Wade, that women have a right to choose abortion prior to fetal viability, but rejected Roe's trimester-based framework for allowing states to curb the availability of abortion in favour of a more flexible medical definition of viability. The decision restated that the source of the privacy right that undergirds women's right to choose abortion derives from the “due process” clause of the Fourteenth Amendment, placing individual decisions about abortion, family planning, marriage, and education within “a realm of personal liberty which the government may not enter.”The judgment also revised the test that courts use to scrutinize laws relating to abortion, moving to an “undue burden” standard: a law is invalid if its “purpose or effect is toplace substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” Ultimately, the court upheld all the provisions of the Pennsylvania statute under attack except for the requirement of spousal notification. Many suits brought since Planned Parenthood v. Casey have centred on the meaning of “undue burden.”

int'l. law and statute:
The 20th century has seen statute laws used as a vehicle of social change and as a battleground of conflicting philosophies. The Nazi Third Reich invaded the bedrooms of its citizens before it moved its troops into the Sudetenland and Czechoslovakia. It forbade the display of contraceptives, which it condemned as the “by-product of the asphalt civilization.” By contrast, the Proclamation of Teheran in 1968 (paragraph 16) provided “Parents have a basic human right to determine freely and responsibly the number and spacing of their children.” This concept was written into Yugoslavia's constitution, and China officially made family planning an obligation for each citizen. U.S. courts interpreted the constitutional right of privacy to include birth control choices when the Comstock Act was finally overthrown in the cases of Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). In Ireland the case of Mary McGee (1973) reversed an Irish anti-contraceptive law of 1935, and in the Luigi deMarchi case in 1971 the Italian Supreme Court struck down the Fascist laws limiting the availability of contraception. At the other extreme, Singapore has passed legislation removing certain tax credits from couples with three or more children.

By the end of the 19th century almost every nation in the world had passed antiabortion legislation. In the United States restrictive laws were propelled not so much by moral considerations as by the desire of the medical profession to regulate the practices of unqualified doctors.

The 20th century has seen the pendulum swing in the opposite direction, and 70 percent of the world's population now lives in countries where abortion is legally available. The Soviet Union (1920) became the first country in the 20th century to permit legal abortion, and the Scandinavian and most Eastern European countries hadliberal abortion laws by the late 1960s. In Britain the Offenses Against the Person Act of 1861 was reversed by the 1967 Abortion Law, and by 1970 Canada and several U.S. states (including New York State) had passed abortion reform legislation. Arguments usually centred on hard cases, such as that of a woman carrying an abnormal fetus or living in extreme poverty. On January 22, 1973, the U.S. Supreme Court struck down as unconstitutional all antiabortion laws remaining in the United States. The Court argued “that the right of personal privacy includes the abortion decision.” India, China, Australia, Italy, France, The Netherlands, and many other countries decided to permit abortion under statute law or following individual case precedents. It has always been difficult to harmonize statute law with biological processes, and several new therapies, such as the use of drugs to induce delayed menstruation, and even the use of IUD's, have not been clearly defined as falling under the category of either contraception legislation or abortion legislation.

In this most controversial aspect of birth control, legal positions have oscillated, depending on circumstance and on government. In 1935 Joseph Stalin reversed Lenin's liberal abortion law in the Soviet Union, and the Nazis declared abortions to be “acts of sabotage against Germany's racial future.” In 1942 a woman was guillotined in Nazi-dominated France as a punishment for abortion, and in 1943 the government of the Third Reich introduced the death penalty for abortionists who “continually impaired the vitality of the German people.” After the defeat of the U.S. antiabortion laws in 1973, a strong drive was undertaken by antiabortionists in the United States to limit the interpretation of the Supreme Court ruling and, if possible, to reverse that ruling by congressional action, constitutional amendment, or the appointment to the Supreme Court of justices who were against abortion.

The law, by defining marriage age, regulating medical practice, and controlling advertising and such factors as the employment of women, also affects many other variables that determine the size of a family. For example, Section 4(5) of the 1954 British Television Act prohibits the advertising of matrimonial agencies, fortune-tellers, and contraceptives. -------source: ency. britannica

i still have to get hold of the proposed house bill, but my basic stand on the matter, being the hopeless existentialist that i am, is for the freedom of choice...that all else, all things in nature, and the universe revolves around the existence-consciousness of the individual...who must decide intelligently, alone, and for the self...nothing else is greater from this point of departure...the zero point of reference in the relativistic-cartesian coordinate system...out unto the infinite reaches of a pulsating universe...

article II, section 12 of the constitution is referred to by opposition to the bill...the basic law states that human life must be protected by the state from the moment of conception..

it provides that >"The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government."

the above quoted paragraph has its roots from the american constitution as a guarantee for civil liberties under the 'due process' clause...which originally read in the 1935 constitutions as> "artIIsec4. The natural right and duty of parents in the rearing of the youth for civic efficiency should receive the aid and support of the government."

then in the 1973 charter, it said> "Section 4. The State shall strengthen the family as a basic social institution. The natural right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the aid and support of the government."

if you compared all the only tells about rearing the youth in terms of state support for education and the parents are given primal authority over the state or the final say.

if you take a closer look at that provision, it embraces too many subjects its not as easy as you think...but the dominating element is family as a basic structure of and woman constitutes a family within the jurisdiction even if the relation becomes childless...maybe i'm just naive!

the problem with the latest that it runs counter to the very essence it was suppose to protect ...the civil liberties of the parents in rearing the child. as decided in roe v. wade and despite the fact that it is under still hasn't been 'overturned'...the word 'support' by government is mostly interpreted as 'giving way' or make exemptions under meritorious circumstances.

i believe that the religious should limit their preachings to the pulpit in churches...religion after all is a personal experience. if the faithful goes to the sanctuary then the guiding light is expected to be there. this is what we call the 'hierarchy of spaces' do not seek sanctuary outside in the wall...nor in the ambulatory for those who are uncertain...but in the altar to kneel to your god... majority should respect the stand of a minority which is built-in in a republican system...but the way the bishops of the roman catholic church has been behaving is not even close to is raising hell in every possible venue...

again my basic stand is that the individual should be given the choice, through free will with full knowledge of all the consequences...the choice alone is left to women..not to men in skirts who want to make the choice for them...

one point of contention is the use of 'abortificents' in contraceptives which in fact is plain and simple abortion of a fetus...a fertilized ovum..

through my limited knowledge, contraception simulates pregnancy by inducing through hormonal injections which prohibits the release of female egg-cell in the reproductive system...logically therefore, there can be no possible fertilization in such a condition...definitely, you cannot make a pregnant woman pregnant...

these matters are best left to medical science and documented research...which has not been given much importance in the current controversy(ergo...under the rules of evidence...i need my expert witnesses) true is the saying that empty vessels make the most sound...enough of the paternal resort to religious dogma and is more immoral to deny womanhood the benefit of scientific developments... to give them no choice...and vow to the dictates of an obsolete greco-roman religious model...surprisingly, it was teheran that gave a very rational proclamation on leaving the choice to couples towards responsible parenthood and the spacing of children left to their discretion...

the world is generally in unison except for the catholic church and the fascist-nazi regimes...haha!
they could still be clinging to the parable that "it is easier for a camel to pass thru the eye of the needle than for a rich man to enter the gates of heaven" that the reason why they want to make this country poor and the people impoverished? birth control is basically aimed at sustainable development, avoidance of unwanted pregnancies through proper orientation and responsible parenthood...

not too long ago, in the history of mankind, a scientist declared that the sun was the center of the universe...he was instead declared as a heretic by the church for his astronomical discovery...of course, those where the days when the fearsome 'inquisition' was in operation... and they were preaching that the earth was the center of the universe...

probable scenario

if it goes the distance all the way to the SC, one possible scenario is that court will decide that HB5043 is unconstitutional based on the declaration of state principles and policies exemplified in art2sec12. it cannot abdicate its primary role as the final arbiter on constitutional matters.. otherwise they will be accused of interpreting the basic law beyond what is clearly provided. justices may be impeached in the process..

so what? then we have to contend with a conflict of laws. for one, roe v. wade protects the woman's right to privacy...and the keyword is viability of the pregnancy...encroached by the religious theory of conception as the crucial point of pregnancy...this is extreme...somehow it found its way into the constitution...owing perhaps to its verbosity(you can thank bernas for that)...

this concept of being also needs to contend with the civil law provision on the legal concept in the existence of natural person's acquisition of legal personality-within the realm of succession. that is the acquisition of rights...which is much later in the stages of pregnancy...or after birth is a reckoning of a certain period of independent life on its own to be ever considered legally 'BORN' equate the mother's life with the 'stage of conception'...dwells on religious dogma and appears to be a fallacy...for one, it gives the state the right to intervene...from that very point it becomes people v. mother...which is a great danger/threat posed upon the ordinary citizen to be subjected to the power of the state with regard to a very personal matter...hence a transgression to the 'due process clause'...

already, as we write, several and numerous instances of documented illegal abortions transpire...placing great risks to the mother in each instant. this is just one of the evils that the proposed house bill is hoping to correct. the provision of proper health care including professional medical/religious counsellings will be made easily available or even mandatory...

the law cannot exist as a conflicting document in must be in harmony within its own existence and in essence...otherwise, it is not law but falsehood and lies...and at that very instant, it loses its majesty and must be universal in appeal and not subject to the trivializations of a 'parochial mind'... unless we are no longer under a regime of law and justice...and the pope gets to call the shots...haha!
the issue revolves around the right to privacy, the right held most sacred of all is the right most valued among the civilized... any institution which denies you that and transgresses it with impunity and callousness must be resisted and if possible...rejected...


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