The Problematic Right to an Abortion from a Natural Law Perspective
| Author | L. Darnell Weeden |
| Position | Thurgood Marshall School of Law, Texas Southern University in Houston |
| Pages | 803-845 |
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2015 e Institute for Migrant Rights Press
803
is Article was supported by a 2015 summer research grant from Texas Southern University
urgood Marshall School of Law. I oer a particular expression of gratitude to my wife and
children for their tolerance while I produced this article.
The Problematic
Right to Abortion
from a Natural Law
Perspective
l. Darnell WeeDen
urgood Marshall School of Law, Texas Southern University in Houston
Email: lweeden@tmslaw.tsu.edu
e right of privacy has expanded signicantly since it was eectively
utilized y years ago to invalidate the conviction of individuals for violating
Connecticut’s birth control law in Griswold. Nevertheless, the right to privacy
continues to create controversy in the twenty rst century as an unacceptable
legal theory or as a constitutional right among some respected legal scholars
because the term privacy does not appear in the United States Constitution.
Specically, the regulation of abortion rights based on a right to privacy is an
ongoing and intense topic of public interest because recent abortion regulations
are viewed by one commentator as placing an undue burden on a woman’s
right to an abortion. As a response, the issue to be addressed here is whether
a vague right to privacy denies a state an opportunity to regulate an abortion
in order to protect the post conception right of an innocent life as well as a
woman’s health. In doing so, it criticizes the Ninth Amendment approach to a
right to privacy and of the various and conicting levels of scrutiny applied to
abortion laws. erefore, it concludes that the right to privacy is vague and
that a Fourth Amendment approach might have produced a narrower, but
more coherent doctrine of privacy rights.
Keywords: Legal Reasoning, Women Issue, Constitutional Interpretation, Right to
Privacy, Jurisprudence.
The Indonesian Journal of International & Comparative Law Volume II Issue 4 (2015) at 803-45
L. Darnell Weeden
804
I. INTRODUCTION
e issue to be addressed is whether a vague right to privacy denies a
state an opportunity to regulate an abortion in order to protect the post
conception right of an innocent life as well as a woman’s health. e right
to privacy has expanded signicantly since it was eectively utilized fty
years ago to invalidate the conviction of individuals for violating Con-
necticut’s birth control law in Griswold v. Connecticut.1 While pretending
not to sit as a super-legislature to determine the wisdom of Connecticut’s
birth control law, the Supreme Court indeed acted as such when it pro-
ceeded to create a shadow of a liberty interest and named the shadow the
right to privacy. According to the Court the shadow’s liberty interest in
privacy does not allow the state of Connecticut to intrude on a married
person’s decision regarding birth control.2 e Supreme Court’s creative
penumbra rationale which gave birth to a constitutional shadow called
privacy, should be rejected because specic guarantees in the Bill of Rights
never ever mentions the word privacy. e Bill of Rights does not rea-
sonably imply abstract penumbras with imaginary emanations in order
to give birth to a shadow also known as the right to privacy. e specic
guarantees of the Bill of Rights did not create zones of privacy because the
phrase zones of privacy is also missing from the Constitution.3
e right to privacy continues to create controversy in the twenty-rst
century as an unacceptable legal theory or as a constitutional right among
some respected legal scholars because the term privacy does not appear in
the United States Constitution.4 Some respected scholars who routinely
engage in a reasonable reading of the plain language of the Constitution
have articulated some persuasive reasons for simply rejecting the judicial
creation of constitutionally implied privacy rights.5 e right to privacy
has been a continuing hot topic in the heated war over the regulation of
abortion since the Supreme Court decided Roe v. Wade in 1973.6 In Roe
1. Griswold v. Connecticut, 381 U.S. 479 (1965)
2. Id. at 482-83
3. See id. at 484-86
4. Scott P. Johnson & Robert M. Alexander, e Rehnquist Court And e Devolution
Of e Right To Privacy, 105 w. va. l. rev. 621, 622 (2003)
5. Id.
6. Roe v. Wade, 410 U.S. 113, 153 (1973).
L. Darnell Weeden
The Problematic Right to Abortion from a natural law perspective
805
v. Wade, the Supreme Court said that the right to privacy gave a woman a
constitutional right to abort her pregnancy by terminating the life of her
unborn fetus during her rst trimester.7
e regulation of abortion rights based on a right to privacy is an
ongoing and intense topic of public interest because recent abortion
regulations are viewed by one commentator as placing an undue burden
on a woman’s right to an abortion. 8 In 2013, Texas State Senator Wendy
Davis, a supporter of the right to choose an abortion, created national
media interest in the abortion war by engaging in a libusters for almost
eleven hours in an unsuccessful attempt a stop vote on imminent
proposed legislation that would: outlaw abortions following twenty weeks
of pregnancy; restrict the right to use medicine - produced abortions; and
require rst-trimester abortion centers to meet the standard required of
all ambulatory surgical centers.9
e Supreme Court on June 29, 2015, prevented Texas from
implementing eective anti-abortion restrictions which would require
many abortion clinics to stop operating. is restriction could make
it more burdensome for a women to choose to have abortion surgery
performed in Texas.10 e Supreme Court mandate suspends operation
of a law, demanding, doctors conducting abortions to possess admitting
privileges at local hospitals and compelling clinics to operate facilities like
surgical hubs.11 Challengers to the Texas law point out that the number
of abortion clinics in Texas had been reduced from forty one to only
nine.12 If the Supreme Court decides not to hear the case in the fall of
2015, the order preventing the implementation of the Texas law will
terminate. However, since ve justice prevented the implementation of
the Texas Law the Court will probably hear the case or a similar case
from Mississippi.13 e Texas law is one of many recent laws expanding
restrictions on abortions since the Supreme Court’s 1992 decision in
7. Id.
8. Jessica Arden Ettinger, S eeking Common Ground in the Abortion Regulation
Debate, 90 notre DaMe l. rev. 875-76 (2014)
9. Id. at 875
10. Richard Wolf, Texas’ Abortion Restrictions On Hold, Await Other Cases, DeMocrat
& chron (June 30, 2015), at B3, available at 2015 WLNR 19420112.
11. Id.
12. Id
13. Id.
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