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Essay on Abortion
| Date: |
10-06-02 4:11pm |
| Subject: |
Social Issues |
| Word Count: |
2706 |
| Page Count: |
10.82 |
Abortion
Abortion
In Roe et al. v. Wade District Attorney
of Dallas County (1973), one of the most controversial cases in recent
history, the U.S. Supreme Court struck down all state laws that limit a
woman's right to an abortion during the first three months of pregnancy.
Justices Rehnquist and White dissented.
Mr. Justice Blackmun delivered the opinion
of the Court....
This Texas federal appeal and its Georgia
companion, Doe v. Bolton, post, p. 179, present constitutional challenges
to state criminal abortion legislation. The Texas statutes under attack
here are typical of those that have been in effect in many States for approximately
a century. The Georgia statutes, in contrast, have a modern cast and are
a legislative product that, to an extent at least, obviously reflects the
influences of recent attitudinal change, of advancing medical knowledge
and techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness
of the sensitive and emotional nature of the abortion controversy, of the
vigourous opposing views, even among physicians, and of the deep and seemingly
absolute convictions that the subject inspires. One's philosophy, one's
experiences, one's exposure to the raw edges of human existence, one's
religious training, one's attitudes toward life and family and their values,
and the moral standards one establishes and seeks to observe, are all likely
to influence and to color one's thinking and conclusions about abortion....
The Texas statutes that concern us here
are Arts. 1191-1194 and 1196 of the State's Penal Code. These make it a
crime to "procure an abortion," as therein defined, or to attempt one,
except with respect to "an abortion procured or attempted by medical advice
for the purpose of saving the life of the mother." Similar statutes are
in existence in a majority of the States.
Texas first enacted a criminal abortion
statute in 1854. Texas Laws 1854, c. 49, Sec. 1, set forth in 3 H. Gammel,
Laws of Texas 1502 (1898). This was soon modified into language that has
remained substantially unchanged to the present time....
Jane Roe, a single woman who was residing
in Dallas County, Texas, instituted this federal action in March 1970 against
the District Attorney of the county. She sought a declaratory judgment
that the Texas criminal abortion statutes were unconstitutional on their
face, and an injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and
pregnant; that she wished to terminate her pregnancy by an abortion "performed
by a competent, licensed physician, under safe, clinical conditions"; that
she was unable to get a "legal" abortion in Texas because her life did
not appear to be threatened by the continuation of her pregnancy; and that
she could not afford to travel to another jurisdiction in order to secure
a legal abortion under safe conditions. She claimed that the Texas statutes
were unconstitutionally vague and that they abridged her right of personal
privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
By an amendment to her complaint Roe purported to sue "on behalf of herself
and all other women" similarly situated....
We are next confronted with issues of justiciability,
standing, and abstention. Have Roe and the Does established that "personal
stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186,
204 (1962), that insures that "the dispute sought to be adjudicated will
be presented in an adversary context and in a form historically viewed
as capable of judicial resolution,"...
The usual rule in federal cases is that
an actual controversy must exist at stages of appellate or certiorari review,
and not simply at the date the action is initiated...
But when, as here, pregnancy is a significant
fact in the litigation, the normal 266-day human gestation period is so
short that the pregnancy will come to term before the usual appellate process
is complete. If that termination makes a case moot, pregnancy litigation
seldom will survive much beyond the trial stage, and appellate review will
be effectively denied. Our law should not be that rigid....
We, therefore, agree with the District
Court that Jane Roe had standing to undertake this litigation, that she
presented a justiciable controversy, and that the termination of her 1970
pregnancy has not rendered her case moot....
The principal thrust of appellant's attack
on the Texas statutes is that they improperly invade a right, said to be
possessed by the pregnant woman, to choose to terminate her pregnancy.
Appellant would discover this right in the concept of personal "liberty"
embodied in the Fourteenth Amendment's Due Process Clause; or in personal,
marital, familial, and sexual privacy said to be protected by the Bill
of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965);
Eisenstadt v. Baird, 405 U.S. 438 (1972);... Before addressing this claim,
we feel it desirable briefly to survey,... the history of abortion, for
such insight as that history may afford us, and then to examine the state
purposes and interests behind the criminal abortion laws....
It perhaps is not generally appreciated
that the restrictive criminal abortion laws in effect in a majority of
States today are of relatively recent vintage. Those laws, generally proscribing
abortion or its attempt at any time during pregnancy except when necessary
to preserve the pregnant woman's life, are not of ancient or even of common-law
origin. Instead, they derive from statutory changes effected, for the most
part, in the latter half of the 19th century....
It is undisputed that at common law, abortion
performed before "quickening"-the first recognizable movement of the fetus
in utero, appearing usually from the 16th to the 18th week of pregnancy-was
not an indictable offense....
In this country, the law in effect in all
but a few States until mid-19th century was the pre-existing English common
law. Connecticut, the first State to enact abortion legislation, adopted
in 1821 that part of Lord Ellenborough's Act that related to a woman "quick
with child." The death penalty was not imposed. Abortion before quickening
was made a crime in that State only in 1860....
Gradually, in the middle and late 19th
century the quickening distinction disappeared from the statutory law of
most States and the degree of the offense and the penalties were increased.
By the end of the 1950's, a large majority of the jurisdictions banned
abortion, however and whenever performed, unless done to save or preserve
the life of the mother....
It is thus apparent that at common law,
at the time of the adoption of our Constitution, and throughout the major
portion of the 19th century, abortion was viewed with less disfavor than
under most American statutes currently in effect. Phrasing it another way,
a woman enjoyed a substantially broader right to terminate a pregnancy
than she does in most States today. At least with respect to the early
stage of pregnancy, and very possibly without such a limitation, the opportunity
to make this choice was present in this country well into the 19th century.
Even later, the law continued for some time to treat less punitively an
abortion procured in early pregnancy....
The Constitution does not explicitly mention
any right of privacy. In a line of decisions, however, going back perhaps
as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the
Court has recognized that a right of personal privacy, or a guarantee of
certain areas or zones of privacy, does exist under the Constitution. In
varying contexts, the Court or individual Justices have, indeed, found
at least the roots of that right in the First Amendment, Stanley v. Georgia,
394, U.S. 557, 564 (1969); in the Fourth and Fifth Amendments,... in the
penumbras of the Bill of Rights,... in the Ninth Amendment,... or in the
concept of liberty guaranteed by the first section of the Fourteenth Amendment,...
These decisions make it clear that only personal rights that can be deemed"fundamental" or "implicit in the concept of ordered liberty,"... are included
in this guarantee of personal privacy. They also make it clear that the
right has some extension to activities relating to marriage,... procreation,...
contraception,... family relationships,... and child rearing and education,...
This right of privacy, whether it be founded
in the Fourteenth Amendment's concept of personal liberty and restrictions
upon state action, as we feel it is, or, as the District Court determined,
in the Ninth Amendment's reservation of rights to the people, is broad
enough to encompass a woman's decision whether or not to terminate her
pregnancy. The detriment that the State would impose upon the pregnant
woman by denying this choice altogether is apparent. Specific and direct
harm medically diagnosable even in early pregnancy may be involved. Maternity,
or additional offspring, may force upon the woman a distressful life and
future. Psychological harm may be imminent. Mental and physical health
may be taxed by child care. There is also the distress, for all concerned,
associated with the unwanted child, and there is the problem of bringing
a child into a family already unable, psychologically and otherwise, to
care for it. In other cases, as in this one, the additional difficulties
and continuing stigma of unwed motherhood may be involved. All these are
factors the woman and her responsible physician necessarily will consider
in consultation.
On the basis of elements such as these,
appellant and some amici argue that the woman's right is absolute and that
she is entitled to terminate her pregnancy at whatever time, in whatever
way, and for whatever reason she alone chooses. With this we do not agree.
Appellant's arguments that Texas either has no valid interest at all in
regulating the abortion decision, or no interest strong enough to support
any limitation upon the woman's sole determination, are unpersuasive. The
Court's decisions recognizing a right of privacy also acknowledge that
some state regulation in areas protected by that right is appropriated.
As noted above, a State may properly assert important interests in safeguarding
health, in maintaining medical standards, and in protecting potential life.
At some point in pregnancy, these respective interests become sufficiently
compelling to sustain regulation of the factors that govern the abortion
decision. The privacy right involved, therefore, cannot be said to be absolute.
In fact, it is not clear to us that the claim asserted by some amici that
one has an unlimited right to do with one's body as one pleases bears a
close relationship to the right of privacy previously articulated in the
Court's decisions. The Court has refused to recognize an unlimited right
of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905)
(vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).
We, therefore, conclude that the right
of personal privacy includes the abortion decision, but that this right
is not unqualified and must be considered against important state interests
in regulation....
...the word "person," as used in the Fourteenth
Amendment, does not include the unborn. This is in accord with the results
reached in those few cases where the issue has been squarely presented....
The pregnant woman cannot be isolated in
her privacy. She carries an embryo and, later, a fetus, if one accepts
the medical definitions of the developing young in the human uterus ...
it is reasonable and appropriate for a State to decide that at some point
in time another interest, that of health of the mother or that of potential
human life, becomes significantly involved. The woman's privacy is no longer
sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth
Amendment, life begins at conception and is present throughout pregnancy,
and that, therefore, the State has a compelling interest in protecting
that life from and after conception. We need not resolve the difficult
question of when life begins. When those trained in the respective disciplines
of medicine, philosophy, and theology are unable to arrive at any consensus,
the judiciary, at this point in the development of man's knowledge, is
not in a position to speculate as to the answer.
It should be sufficient to note briefly
the wide divergence of thinking on this most sensitive and difficult question.
There has always been strong support for the view that life does not begin
until live birth....
In areas other than criminal abortion,
the law has been reluctant to endorse any theory that life, as we recognize
it, begins before live birth or to accord legal rights to the unborn except
in narrowly defined situations and except when the rights are contingent
upon live birth. For example, the traditional rule of tort law denied recovery
for prenatal injuries even though the child was born alive....
In view of all this, we do not agree that,
by adopting one theory of life, Texas may override the rights of the pregnant
woman that are at stake. We repeat, however, that the State does have an
important and legitimate interest in preserving and protecting the health
of the pregnant woman, whether she be a resident of the State or a nonresident
who seeks medical consultation and treatment there, and that it has still
another important and legitimate interest in protecting the potentiality
of human life. These interests are separate and distinct. Each grows in
substantiality as the woman approaches term and, at a point during pregnancy,
each becomes "compelling."
With respect to the State's important and
legitimate interest in the health of the mother, the "compelling" point,
in the light of present medical knowledge, is at approximately the end
of the first trimester. This is so because of the now-established medical
fact, referred to above at 149, that until the end of the first trimester
mortality in abortion may be less than mortality in normal childbirth.
It follows that, from and after this point, a State may regulate the abortion
procedure to the extent that the regulation reasonably relates to the preservation
and protection of maternal health. Examples of permissible state regulation
in this area are requirements as to the qualifications of the person who
is to perform the abortion; as to the licensure of that person; as to the
facility in which the procedure is to be performed, that is, whether it
must be a hospital or may be a clinic or some other place of less-than-hospital
status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for
the period of pregnancy prior to this "compelling" point, the attending
physician, in consultation with his patient, is free to determine, without
regulation by the State, that, in his medical judgment, the patient's pregnancy
should be terminated. If that decision is reached, the judgment may be
effectuated by an abortion free of interference by the State.
With respect to the State's important and
legitimate interest in potential life, the "compelling" point is at viability.
This is so because the fetus then presumably has the capability of meaningful
life outside the mother's womb. State regulation protective of fetal life
after viability thus has both logical and biological justifications. If
the State is interested in protecting fetal life after viability, it may
go so far as to proscribe abortion during that period, except when it is
necessary to preserve the life or health of the mother....
A state criminal abortion statute of the
current Texas type, that excepts from criminality only a life-saving procedure
on behalf of the mother, without regard to pregnancy stage and without
recognition of the other interests involved, is violative of the Due Process
Clause of the Fourteenth Amendment.
...For the stage prior to approximately
the end of the first trimester, the abortion decision and its effectuation
must be left to the medical judgment of the pregnant woman's attending
physician.
...For the stage subsequent to approximately
the end of the first trimester, the State, in promoting its interest in
the health of the mother, may, if it chooses, regulate the abortion procedure
in ways that are reasonably related to maternal health.
...For the stage subsequent to viability,
the State in promoting its interest in the potentiality of human life may,
if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the
life or health of the mother....
The cases of Roe v. Wade and Doe v. Bolton
(1973) were companion cases in which the U.S. Supreme Court held, with
some qualification, that state laws prohibiting abortions were unconstitutional.
Roe involved a Texas statute making it a felony for anyone to destroy a
fetus except on "medical advice for the purpose of saving the mother's
life." Doe dealt with a Georgia statute allowing an abortion when the woman's
life was endangered, when the child would be born with a severe defect,
or when pregnancy had resulted from rape.
Invalidating both statutes in 7-2 rulings,
the Court, speaking through Justice Harry Blackmun, held that the constitutional
right of privacy-whether based on the concept of personal liberty in the
Fourteenth Amendment or on the reservation of rights to the people in the
Ninth Amendment-"includes the right of a woman to decide whether or not
to terminate her pregnancy." Blackmun went on to say that the right to
an abortion is not unqualified and must be balanced against the state's
interest in regulation. He outlined what the states might and might not
do. During the first trimester of pregnancy the states might not proscribe
abortions but could regulate abortion procedures to protect maternal health.
After that the states might regulate or even prohibit abortions subject
to appropriate medical judgment. The decision aroused nationwide controversy.
The Court has several times approved states' procedural restrictions, but
in 1992 it reaffirmed Roe's basic rule.
Bibliography:
Faux, M., Roe vs. Wade (1989)
Garrow, David J., Liberty and Sexuality:
The Right to Privacy and the Making of Roe v. Wade (1994)
Krason, Stephen M., Abortion: Politics,
Morality, and the Constitution (1984)
Rubin, Eva, Abortion, Politics, and the
Courts (1982; repr. 1987).
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