PRIVACY RIGHTS| 117Abortion Rights
Eight years after Griswold the landmark ruling in Roe v. Wade struck down laws
in 46 states that limited abortion. Twelve of those states allowed abortions for
pregnancies due to rape or incest, to protect the life of the mother, and in cases
of severe fetal handicap. The much-criticized trimester analysis in the Roe ruling
said that states could not limit abortions in the fi rst trimester; in the second tri-
mester, states could regulate abortions in the interests of the health of the mother;
and in the third trimester, states could forbid all abortions except those necessary
to protect the health or life of the mother.^97
Subsequent decisions have upheld Roe but endorsed various state restrictions
on abortion, such as requiring parental consent, a waiting period, or counseling
sessions aimed at convincing the woman not to have an abortion. Most signifi cant,
the trimester analysis of Roe has been replaced by a focus on fetal viability. When
the fetus would be viable (generally at 22 or 23 weeks), states can ban abortions
“except where it is necessary, in appropriate medical judgment, for the preserva-
tion of the life or health of the mother.”^98
Since Roe, most political action concerning abortion has taken place in the
courts, but that could all change if the Supreme Court overturns this decision.
Overturning Roe would shift the politics of abortion back to state legislatures
and make it an even more highly contested political issue. One eff ort to force a
challenge to Roe was a “personhood amendment” to the Mississippi constitution
that defi ned life beginning at conception. However, the amendment was soundly
defeated in a statewide vote in 2011.^99
The Right to Die
Privacy rights have become central in debates over the right to die, in which two
types of political issues arise. The fi rst involves the right of a person who is brain
dead or in a persistent vegetative state to refuse medical treatment so he or she
may die. The second is more complicated: May states allow assisted suicide for
people with terminal illnesses, even if that practice confl icts with federal law?
In terms of the fi rst issue, courts have approved living wills in which a person
documents specifi c wishes in advance about end-of-life medical care. The prob-
lem arises when a person who can no longer communicate has not left instructions
on how much medical intervention to receive. Every month thousands of families
have to make these decisions during the last few weeks of a patient’s life, in con-
sultation with their doctors. Most decisions are extremely diffi cult but without
legal confl ict. The high-profi le case of Terri Schiavo illustrated how complicated
the situation can get. After a heart failure that resulted in severe brain damage,
Schiavo remained in a vegetative state from 1990 though 2005. Her husband said
she would not have wanted to be kept alive in that condition, but Schiavo’s parents
wanted to keep her alive. After the Supreme Court refused to intervene, she was
taken off life support at her husband’s request. Given this precedent, the courts
seem unlikely to get involved in matters traditionally resolved between a family
and their doctor.
The assisted suicide issue applied to a case involving Oregon’s Death with
Dignity Act. This law allows a terminally ill patient to get a doctor’s prescrip-
tion to end his or her life. In the law’s fi rst 14 years, 596 people ended their lives