Revisiting Roe vs Wade
Markandey Katju 12 May 2022

A controversy is raging in America over Justice Alito's leaked draft judgment proposing to overturn the US Supreme Court's verdict in Roe vs Wade delivered in 1973 regarding the right of abortion.It is believed 4 other judges in the court intend to concur with Justice Alito, making it a majority judgment.

I believe Justice Alito's view is correct,and would like to give my reasons. Of course it is only a draft opinion, but knowing the judicial philosophy of the majority judges it is highly likely it will be confirmed in the final verdict.

In Roe vs Wade the US Supreme Court set up a trimester system of pregnancy in women. In the first trimester ( the first 3 months of pregnancy ) no restrictions could be placed on a woman to abort. In the second trimester, too, abortion was permissible, though the state could put some restrictions e.g. it should be done by qualified medical personnel, in licensed clinics, etc.In the third trimester no abortion was permissible unless a qualified doctor certified that the life of the woman would be in danger without abortion.

In Planned Parenthood vs Casey, 1992, the right to abortion enunciated in Roe was accepted, but the trimester system was replaced by the viability test ( i.e. at what stage of the pregnancy would the foetus be able to survive outside the woman's womb ), and the undue burden test ( i.e. does the restriction on abortion place an undue burden on the pregnant woman e.g. taking the husband's consent ).

I am not going into the questions as to when does life begin, when is a foetus viable, what are undue burdens, etc. My simple point is that under the separation of powers theory ( that each of the 3 organs of the state have their own spheres of operation and should not encroach into each other's domains ), it is for the legislature, not the judiciary, to make laws, and both Roe vs Wade as well as Planned Parenthood vs Casey made laws.

I am personally in favour of the right to abortion, but then this right should be enacted by the legislature, not created by judges. There is nothing specific in the US Constitution which gives a right to abortion. Some states in America have enacted this right, but others have not.

The rights of people in the US Constitution are mentioned in the Bill of Rights and several Amendments to the Constitution, e.g. the 14th Amendment, but the right to abortion is nowhere contained therein.

Of course there is a theory of 'unenumerated rights', i.e. there are some rights which though not expressly mentioned in the Constitution can be said to be part of it, but I do not subscribe to this view. To accept it would mean that any judge, according to his whim and fancy, can declare anything as an 'unenumerated right' and enforce it. This would lead to chaos.

In his book, ' The Nature of the Judicial Process ' Justice Cardozo of the US Supreme Court observed " A judge is not a Knight Errant roaming at will in pursuit of his own ideal of beauty and goodness ".

In his dissenting judgment in Griswold vs Connecticut, Justice Hugo Black warned that ' unbounded judicial creativity will make this Court a day to day National Convention '.

In Lochner vs New York the celebrated Justice Holmes of the US Supreme Court in his dissenting judgment criticised the majority of the court for becoming a super legislature by inventing a 'liberty of contract' theory thereby enforcing its particular laissez faire economic philosophy.

The job of a judge is to interpret the law made by the legislature, and apply it to specific cases, but not to make law. Roe vs Wade ( and Planned Parenthood vs Casey ) clearly made law, which was the function of the legislature. Hence it should be reversed.

By Justice Markandey Katju, Former Judge, Supreme Court of India

Did you find this write up useful? YES 0 NO 0
Sandra Rivers   15 Dec 2022 2:40am
HIRE A CERTIFIED AND GUARANTEED CRYPTO RECOVERY AND PHONE SPYING EXPERT AT REMOTESPYTECH Finding out that your husband or wife has been unfaithful isn’t just a time of profound heartbreak and shock, it’s also a time of intense confusion . At certain points desperate measures are our only resort and we take them, finding a trustworthy infiltrator can be a lifeline and I sure used one to save my relationship, business and sanity. I was having real life problems when my friend recommended Zion to me. I contacted him because my business partner was shaking me, stealing money from the business. Also my spouse was always up at odd hours clearly this is a sign that my spouse is cheating, so the hacker cloned/hacked into their devices and granted me total access to their devices without their knowledge. I was overwhelmed that I could see my business partner hidden finances that were off records and read their old and new text messages, see new and deleted pictures, emails, call logs, Facebook, messenger, WhatsApp, Snapchat, GPS location in real time among other things off my spouse phone. If you require the services of a private investigator (EC council certified personnel), you can speak to Zion at Remotespytech(@) Gmail, com . You will be glad you did. For the purpose getting him comfortable working with you, it is advisable you make reference to this post as it would save you a lot of back and forth while ensuring you are not some kid playing around. I do hope this helps. Email: REMOTESPYTECH (@) GMAILCOM WhatsApp: +1 (352) 870-0844 They can help you recover lost or stolen bitcoins and funds in one swipe. He assisted my friend recover his stolen $255,000 savings from a faux forex broker. He can help you repair your bad credit, secure a good loan for you and upgrade your credit scores. Send your complaint to this great team now!!! Real deal
Mat Toney  21 Jul 2022 6:30am
Have you ever thought of recovering your bitcoin from bogus trading platforms? Perhaps recover the bitcoin you sent to a scammer? I bet you are not alone. I've been on the quest and search for a way to recover my $50,000 from a bitcoin investment trading platform, after the highs and lows during the course of way out, I was fortunate to read a recommendation about the Voltron Hackers as the best and genuine experts, who would help me in getting the funds back to my CoinBase wallet. I did send a mail to them on DIGITALTECHHACKER @ GMAIL COM, I must say it was an amazing feeling, although I had to sacrifice my 10% to them fo the service well done. I have decided to share this information, not exaggerating nor over praising the team, but I give people their flowers when they deserve, and to help others like me who might need help in getting their funds back from such companies.

C2RMTo Know More

Something Awesome Is In The Work









Sign-up and we will notify you of our launch.
We’ll also give some discount for your effort :)

* We won’t use your email for spam, just to notify you of our launch.

SAARTHTo Know More

Launching Soon : SAARTH, your complete client, case, practise & document management SAAS application with direct client chat feature.

If you want to know more give us a Call at :+91 98109 29455 or Mail