INSTITUTE OF LAW, NIRMA UNIVERSITY

LEGAL RESEARCH AND WRITING

2BL331

ASSIGNMENT: ARTICLE RESPONSE

ARTICLE 1: ABORTION AND PRIVACY: A WOMAN'S RIGHT TO SELF

DETERMINATION By Angela R. Kraus

Citation: Angela R. Kraus, Abortion and Privacy: A Woman's Right to Self Determination, 10 Sw. U. L. Rev. 173 (1978).

Number of pages-23

SUBMITTED TO: SUBMIITED BY:

SURENDRA KUMAR Harshul Khadiya
(18bbl013)
 Response Paper

ABORTION AND PRIVACY: A WOMAN'S RIGHT TO SELF DETERMINATION

In his article ‘Abortion and privacy: A Woman’s Right to Self Determination, Angela R. Kraus
has analysed the right to privacy in abortion matters and with the analysis of the already decided
cases has supported the view that a woman has absolute right to privacy during the first
trimester after that the state has compelling interests in the woman’s life and the potential life
of the foetus. In the paper, I shall argue, for the thesis that women must have absolute right
during the first trimester because it is guaranteed by the constitution as right to privacy and for
the reasons pointed out in the article through various cases.

Right to privacy is a right most valued by a civilized society. In landmark cases of Roe v.
Wade1 and Doe v. Bolton2 it was laid down that the state is prohibited from interfering with a
woman’s right to abortion but the question of third party interests such as spouse and parents
were left unanswered. This right guaranteed in Roe and Doe cases was preserved and assured
in another landmark judgment of Planned Parenthood of Central Missouri v. Danforth3 wherein
it was held that woman’s right must not be subordinate to third party interests during the first
trimester. After these in many cases such as Herko v. Uviller4 and Ponter v. Ponter5 etc. it was
held that spouse cannot determine the his progeny should be aborted or not for the simple
reason that woman who physically bears the child and is more directly affected by the
pregnancy, the privilege should be given to woman to decide whether to terminate the
pregnancy or not.

Not only to the majors but the right to privacy also includes the minors and supreme court in
Danforth case held this right is subject to reasonable restriction based on state’s compelling
interests in minor’s welfare and that that parents have in their daughter’s welfare. Now the
question was whether the minor women can enjoy the same personal privacy or not. So in the

1
410 U.S. 113 (1973).
2
410 U.S. 179 (1973).
3
428 U.S. 52 (1976).
4
203 Misc. 108, 114 N.Y.2d 618 (1952).
5
135 N.J. Super. 50, 342 A.2d 574 (1975).
cases of State v. Koome6 and Foe v. Vanderhoef7, parental consent requirement statute was
struck down and was held that it infringes the right to privacy enshrined in the constitution.

In the Danforth case and also in the case of Bellotti v. Baird8, the termination of pregnancy by
minor was subjected to her capability to exercise her right in such a way most beneficial to the
minor but unlike the statute at issue in Danforth, the Massachusetts statute in Bellotti v. Baird
provided that the minor can file a petition in the court to set aside the parental refusal. This way
again in this case also the court acknowledged that minors have a qualified right of privacy
subject to the compelling interest of state in the well-being of minor.

Conclusion

The Danforth case though didn’t resolve every question pertaining to abortions but it reaffirmed
and explained that it is every women’s constitutional right to determine for themselves whether
to bear or beget a child. In context of minor also the courts considered the right to privacy as a
broad right applicable to minors but suggested that a standard of competency shall be applied
to determine whether the minor’s decision is in the best interest of them. The only thing that
Angela R. Kraus Failed to include and didn’t focus upon is the rape cases, as to what are the
rights of the woman in cases of rape which according to me is the most questionable and
debatable in today’s time and which can counter first trimester rule.

6
84 Wash. 2d 901, 530 P.2d 260 (1975).
7
389 F. Supp. 947 (D. Colo. 1975).
8
428 U.S. 132 (1976).