The Abortion Controversy in the United States: The Constitutional Dimensions

Abstract

The text analyzes the constitutional evolution of abortion in the United States, highlighting the change initiated with Griswold v. Connecticut (1965), where the Supreme Court recognized a “right to privacy” not explicit in the Constitution. It is argued that this doctrine was the basis for the Roe v. Wade decision (1973), where it was established that a woman's right to have an abortion is part of that right to privacy, subordinating the protection of the fetus until viability (last trimester). In this line, the Court affirmed that the fetus is not a constitutionally protected “person” and that the rights of the unborn ‘child’ (seen as “potential life”) are always inferior to those of the mother. On the other hand, the author compares Roe v. Wade with the Dred Scott case (1857), which also denied rights to a human group - African Americans - asserting that both rulings excluded certain human beings from constitutional protection. Finally, he argues that the “right to privacy” was a judicial invention with no textual or historical basis and predicts that, like other extreme interpretations of the Constitution, Roe v. Wade will eventually cease to be the governing standard of law.