State Power vs. Women’s Rights

Part I. Introduction

In 1973, the Supreme Court handed down the decision in Roe v. Wade which recognized women’s right to obtain an abortion. However, many pregnant women today still face a multitude of barriers preventing them from exercising that right. One of the most detrimental and decisive of these barriers is the lack of financial means. Compared to the countless attacks Congress has made against indigent women from receiving funding for abortion services, the significance of the Supreme Court’s role in determining the fiscal matters of abortion has been minimized. But for the past 30 years, the Court has passed decision after decision that supported the victimization of low-income women, chipping away their precious right. In my paper, I examine several of these Supreme Court decisions that have undone the achievements won in Roe in order to highlight a pattern of judicial compliance with the State that trumps State rights over women’s rights.

To understand the severity of the consequences suffered by women because of the regulation of abortion, it is extremely important to grasp what abortion means in regards to women’s liberty and equality. In medical terms, abortion is the termination of a woman’s pregnancy. In the legal field, “nontherapeutic abortion” and “elective abortion” is used to denote abortions that are not due to threats to the woman’s life, rape, or incest. But these basic definitions alone cannot help us understand what is at stake for women if the right to abortion were to be lost, and why women and other Pro-Choice individuals continue to fight. To gain insight as to why abortion is an important women’s right, I explore the work of law philosopher and professor, Ronald Dworkin, who sees abortion as a necessary factor for gender equality. Believing that women can never achieve the same societal ranking as men if they cannot control their own destinies, Dworkin uses the argument of personal autonomy to defend his position. I also refer to the work of historian and professor, Linda Gordon, who believes that reproductive freedom is the key to women’s liberation.

In the following section, I provide detailed analyses of several Supreme Court cases. By using these cases, I show a trend in their decisions that expanded State powers, powers that were namely restricted in Roe‘s holding. Despite the Court’s claims that it has performed its judicial duties in accordance with Roe, I believe that the Court has in many ways, compromised and reversed the former decision. The fact that the Court has allowed states the authority to make it extremely difficult for women to obtain an abortion shows that it has done a poor job in securing a liberty that it previously ruled was protected. Close examinations of these cases that best demonstrates the Court’s series of failures allows me to not only question the constitutionality of their outcomes, but evaluate the validity of the methods the Justices used in reaching their decisions. Within the analysis of each case I also argue in favor for the dissenting opinions, which were written in favor of women and women’s right to abortion.
The last part of my paper applies the theory discussed earlier in part two with empirical evidence to show the social and economic ramifications of the expansion of State power at the expense of women’s rights. This section illustrates how states are able to take advantage of the powers granted to them by the Court to create financial barriers specifically against low-income women from obtaining abortions. By refusing to fund for abortion services, states have in many cases, managed to coerce indigent women into making personal lifestyle choices at odds with their own desires. Currently, more than seven million women of reproductive age rely on Medicaid. According to the Guttmacher Institute, a non-profit organization that conducts research and analyzes policy in regards to sexual and reproductive health to promote public education in these areas, a quarter of these women carry unwanted pregnancies to term due to the lack of funds available to them. By allowing the states to neglect their financial responsibility to these low-income women, both the Court and the states

have clearly impinged those women’s rights and negatively affected their quality of life. Widening the scope, it can be observed that their action has created devastating effects for efforts on gender equality and women’s liberation for years to come.

Part III: The Supreme Court and the State

Restriction on State Power

Roe v. Wade

On January 23, 1973, Justice Blackmun delivered the majority opinion of the Court and on that day, American women came one step closer towards piloting their own destiny. The Court found that the right to privacy under the Fourteenth Amendment is applicable to the cases in which women are seeking an abortion, and made women (in conjunction with her consulting physician) the primary decision-maker in determining the course of their pregnancy in the first two trimesters.

The States that had laws banning abortion argued for their interest in protecting both the life of the mother from the hazardous methods of abortion, as well as the potential life that is within the womb. Justice Blackmun swiftly struck down the State’s first interest, stating that medical technology has advanced so much that obtaining an abortion poses equal or less risk than normal childbirth; the State’s second interest, interest in potential life however, was deemed partially valid. It is the State’s interest in potential life that really helped to push the Supreme Court in determining certain boundaries for the State. The Court held that the State did reserve the right to act upon a compelling state interest towards potential life, if potential life was involved. The determinant for the existence of potential life would be viability, or the ability of the fetus to live outside of the woman’s womb with or without medical assistance. Thus Justice Blackmun divided pregnancy into three stages in terms of viability and described the State’s function at each stage:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life of the mother… (“Roe v. Wade,” 1977)

The framework set forth in Roe v. Wade caused a sweeping change across the country, affecting the State laws of forty-six states. (The Oyez Project, accessed Dec 13, 2009)

Expansion of State Power

Beal v. Doe

At its core, Roe v. Wade’s decision resolved a great conflict that was present on both cultural and legal levels; it answered the question of whether or not the right to privacy extended to women in the case of seeking non-therapeutic abortions. Also achieved by Roe v. Wade was a judicial definition of State power in regards to abortion. However, the resolution found in Roe v. Wade opened the door to many other questions, one of which was the question of funding.

The issue of funding came up in 1977 during the Supreme Court case of Beal v. Doe. Eligible Medicaid candidates denied financial aid for abortion services went against the State of Pennsylvania. Because Pennsylvania refused to fund abortions under their Medicaid program (unless they were declared by physicians to be medically necessary for the health of the pregnant woman), those Medicaid candidates argued that the State of Pennsylvania has violated Title XIX of the Social Security Act and denied them equal protection of the law. The Court decided in favor of Pennsylvania after reviewing the language of Title XIX and declaring that nothing in its language required participating States of the Medicaid program to fund medically unnecessary abortions. In delivering the majority opinion, Justice Powell pointed out that Title XIX only required the coverage of five general categories of medical treatment, leaving each individual State to establish “reasonable standards…for determining…the extent of medical assistance under the plan which are consistent with” the purpose of Title XIX (Section I, para 1). Thus while States are free to fund nontherapeutic abortions, they are in no way obligated to do so. Furthermore, Justice Powell referred to Pennsylvania’s refusal of funding as merely showing preference for normal childbirth over termination; such a preference is not prohibited under the guidelines of Title XIX.

Justices Brennan, Marshall, and Blackmun each wrote dissenting opinions. Justice Brennan expressed a different view in looking at the objectives of Title XIX and the situation of abortion. Essentially, Justice Brennan dissented with the majority opinion that Title XIX does not lend itself to cover abortion services because abortion is not medically necessary. Pregnancy in itself is a medical condition that needs attention and in his perspective, abortion and normal childbirth are two different forms of treatment for it. The choice of treatment he claimed is to be left up to the pregnant woman and her physician; the only role the State has is to make sure that the treatments that the woman and her physician chooses are available and safely administered. Although Justice Brennan’s dissent defends women’s right to a Medicaid-funded abortion by declaring abortion as a necessary medical procedure, it is not the most effective argument against the State of Pennsylvania’s refusal to fund abortion. Adhering so closely to Title XIX’s Medicaid program and limitations, Justice Brennan was not able to realize that the issue at hand was more important than trying to fit abortion into the guidelines of Title XIX.

Justice Marshall and Justice Blackmun’s dissents were much stronger in that they both understood the issue to be greater than determining whether abortion as a medical alternative belonged under the category of Medicaid coverage. While that issue is central to this case, a much larger concern must be addressed. Justice Brennan’s dissent wasn’t enough because it failed to show the depth of the consequences faced by women who are denied funding. The language of Title XIX can be read and interpreted in many ways; sometimes it will be read in favor of nontherapeutic abortions like Justice Brennan did, and other times it won’t be, like the majority of the Court did in this case. That is why it is important to look beyond Title XIX and take into account other reasons why abortions should be funded by the State.

In his dissent, Justice Marshall pointed to a most detrimental outcome of the State’s refusal of funding for Medicaid candidates seeking abortions. By offering financial aid for normal childbirth and refusing to help those seeking abortions, the State is essentially using financial coercion to enforce a moral viewpoint. The Court’s majority stated that women denied of monetary aid may still choose to obtain abortion services if they so desired; their right to an abortion has not been impinged. This is where Justice Marshall objected most vehemently. The general purpose of Medicaid is to provide aid to qualified individuals within a low income bracket, who without the help of the State would be unable to fund for their own medical services. Although the Court’s majority maintains that the right to abort still exists as a viable choice and protected activity to all women, attaching a financial cost that is not affordable to indigent women who rely on Medicaid for a variety of medical services turns the choice into an impossibility. (Continued further in paper)