American Democracy in Context. Joseph A. PikaЧитать онлайн книгу.
pregnancies began to survive with greater frequency. That change affected the second trimester, in particular. This development led some, such as Justice Sandra Day O’Connor, to suggest that the trimester framework should be abandoned.99
By 1992, the composition of the Supreme Court had changed dramatically since the 1973 decision in Roe, and many predicted that a new majority existed that would be willing to overturn it. The opportunity to do so came in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).100 The resulting 5–4 decision abandoned the trimester framework but reaffirmed the “central tenet” of Roe. It also established a new “undue burden standard” (a middle ground between strict scrutiny and rational basis) that made it easier for some abortion restrictions to stand.
With President Trump’s appointments of Neil Gorsuch and Brett Kavanaugh to the Supreme Court, there may be a new 5–4 majority willing to limit abortion rights further or even overturn Roe v. Wade. Although Chief Justice Roberts sided with the liberal wing of the Court in February 2019 to form a 5–4 majority to temporarily block a highly restrictive Louisiana abortion law from going into effect101—at least a short-term victory for proponents of Roe—it seemed certain that the Court would revisit the abortion issue soon.102
The availability of abortion varies across countries (see Figure 4.3). For example, a woman can go to prison for having an abortion in Chile. Abortion is illegal under all circumstances or permitted only to save the life of the mother in much of Africa and South America. On the other hand, since Ireland’s historic 2018 referendum that overturned that country’s long-standing ban on abortions, it is effectively allowed in all European countries, with some restrictions. For example, France requires a woman to undergo counseling before obtaining an abortion. And while Germany technically prohibits abortion, a woman will not be prosecuted for obtaining an abortion during the first trimester as long as she undergoes counseling that seeks to persuade her to carry the pregnancy to term. This compromise was forged after the reunification of East and West Germany in 1989. Abortion was one of the great debates of reunification because the people of East Germany had been accustomed to very liberal abortion laws whereas the people of West Germany had not.
Figure 4.3 Abortion Laws Around the World, 2019
Source: Center for Reproductive Rights (www.worldabortionlaws.com).
Abortion is a particularly contentious issue in the United States. As the political theorist Ronald Dworkin has noted, the controversy over abortion is in part a result of the explosive mix of religiosity and progressive women’s movements in this country. The United States, he notes, is not only “among the most religious of modern Western countries” (and “by far the most fundamentalist”) but also the home of a women’s movement that has traditionally been more powerful than anywhere else.103 Another important factor may be the way national abortion law came about in the United States. Instead of resulting from the normal process of political struggle and compromise worked out by Congress, it was established by the Supreme Court in Roe v. Wade. If Roe is ever overturned, each state legislature will need to decide whether or not to allow abortions, unless Congress chooses to enter the fray and establish a uniform policy for the entire country. Either way, political fights over the issue would be fierce.
Extending the Liberty of Same-Sex Couples
How far does the right of privacy extend? Griswold gave married couples a limited privacy right to use contraceptives free from government intrusion. Roe then extended that right to cover aspects of bodily autonomy. But what about state laws that criminalize certain types of consensual sexual behavior among adults?
This issue came before the Supreme Court in Bowers v. Hardwick (1986).104 The state of Georgia made it a felony, punishable by up to 20 years in prison, to engage in sodomy (defined by the law as oral or anal sex). The law applied equally to homosexual and heterosexual couples, including married partners. This case involved a gay Atlanta bartender named Michael Hardwick who was arrested for engaging in oral sex with another man in his own bedroom. A police officer accidentally discovered them when he came to serve Hardwick a warrant for not appearing in court for an open container violation. The district attorney did not prosecute Hardwick, but he did not drop the charges either. Therefore, Hardwick brought a civil suit challenging the constitutionality of the Georgia law in federal court. He argued that it violated the right of privacy. By a narrow 5–4 vote, the Supreme Court rejected that claim and upheld the Georgia law, claiming that it had a rational basis. The dissenters used strict scrutiny to conclude that the law violated the right of privacy.
The Supreme Court overturned Bowers v. Hardwick in Lawrence v. Texas (2003).105 This time, the majority concluded that laws criminalizing private, consensual homosexual conduct have no rational basis. Justice Antonin Scalia criticized this conclusion in dissent. If states have no rational basis to proscribe homosexual conduct, he asked, “What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected in the Constitution’?”106 His prediction that the majority’s reasoning would make it more difficult for courts to uphold laws banning same-sex marriage proved to be correct.
Tyron Garner (left) and John Lawrence (right) sued after sheriff’s deputies discovered them engaging in consensual sex in Lawrence’s home. The Supreme Court’s decision in the case declared anti-sodomy laws an unconstitutional violation of individuals’ right to privacy.
REUTERS / Richard Carson
In 2003, the Supreme Judicial Court of Massachusetts ruled 4–3 that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts constitution.”107 Various states plus the District of Columbia followed suit, recognizing either marriage or civil unions/domestic partnerships of same-sex couples. However, other states specifically banned same-sex marriages. In 2015, the Supreme Court, in Obergefell v. Hodges, declared such bans to be unconstitutional. In a 5–4 ruling, the Court concluded that the right to marry is one of the fundamental liberties protected by the due process clause of the Fourteenth Amendment and that the equal protection clause prohibits same-sex couples from being treated differently than opposite-sex couples in the eyes of the law. By the time of the Obergefell decision, eighteen other countries (starting with the Netherlands in 2001) already recognized same-sex marriage. By 2019, twenty-seven countries sanctioned same-sex marriage, but consensual homosexual conduct remained illegal in over seventy countries.108
The Right to Die
Courts have long recognized a common-law right of individuals to refuse most unwanted medical procedures. But does the right of privacy also extend a broader constitutional right—one that includes a right to die? May patients refuse invasive procedures that would extend their lives, such as the use of an artificial respirator, on privacy grounds? The issue is complicated because such patients are often incapacitated and are not able to express their wishes. Moreover, they may have left no written instructions, such as a living will. Can the patient’s guardian make a substituted judgment for the patient in such a situation? This question is especially controversial because refusal of treatment under these circumstances often leads directly to the death of the patient.
Guardians sometimes argue that their loved one would not want to be kept alive with no hope of meaningful recovery—if, for example, the patient were brain dead. They offer the legal argument that forcing artificial life support on patients violates a fundamental right of privacy. But others argue that decisions to withdraw life support violate the patient’s right to life and may even constitute murder.
The