Abstract
The purpose of writing this research paper is to evaluate the legislative standing of abortion. Throughout history abortion has been a controversial issue, and still is. The US Courts have given their rulings on many cases involving abortions that have transformed over the time. Abortion is a controversial issue and has given rise to many questions in the context of political science and law. Several abortion related matters have been discussed in this work such as the brief historical account of abortion rulings in the court of the US, and the impact it had on the cases; how successfully and unsuccessfully the courts ruled in abortion related cases, and their unintended consequences. Towards the end, certain recommendations have been given in an attempt to reach a common ground between the opposing opinions. The methods used to carry out this research has been extensive comparative study of secondary sources such as books and law journals. Previous court cases, their rulings, their context and social trends on that time have been considered to reach concrete solutions.
Legislative history of Abortion and Case law influences
Abortion rights have always remained controversial in every country throughout history. The debate between ‘freedom of choice’ and the ‘murder of an unborn’ has influenced court cases. Political motives have also affected the legislative process regarding abortion. In the context of abortion debate, the 1973 Roe v. Wade case held in the U.S. Supreme Court is of critical importance. Its ruling stated that the US Constitution honors and protects the right of every woman to choose if she wants to abort the pregnancy. In a similar ruling in the case of Doe v. Bolton the court endorsed that constitution is clear about the right of choice and the state should not create any hurdle in exercising that right (the right of abortion).
Abortion is a contested topic in many countries (McCoyd, 2010). Despite the clear rulings in the above mentioned cases controversies and debates still make abortion a complicated matter. Religion, politics and tradition sometimes prohibit the right to exercise it. And with the passage of time instead of reaching an agreeable solution, the issue still stirs controversies and sparks protests. Under these difficult circumstances, certain court rulings have also shown to have sided with the opposite opinion.
Webster v. Reproductive Health Services (1989) and Rust v. Sullivan cases have seen court rulings that gave the state the authority to restrict abortion or abortion-related activities (Needle & Walker, 2008). In the 108th Congress a special legislation was passed approving the law to ‘partial birth’. The partial birth abortion refers to the termination of the fetus in the later stages of the pregnancy; during the last trimester (Levy, 2002). The Partial Birth Abortion Ban Act refers to the prohibition of trafficking a minor across states in order to get a legal approval to perform the medical procedure of abortion.
In Roe v. Wade case the Congress imposed several funding restrictions on abortion. This has been evident in curbing Medicaid abortions. This restriction is normally referred to as the ‘Hyde Amendment’, named after Congressman Henry Hyde of Illinois in 1976 (McBride, 2008). It also prohibits funding abortion in federal prisons, except in cases of rape, incest, or where the mother faces a life threatening situation. Interestingly, there are complications in establishing rape and incest as legitimate reasons to perform federally funded abortion (McBride, 2008). Hence, in its essence, the Hyde Amendment practically allows for abortion only when there is a danger to the mother’s life.
The abortion debate continued for decades under health reforms. Although the Affordable Care Act 2010 covers abortion (Grossman et al., 2010), however it is ridden with controversies. Premium tax credit and cost sharing subsidies can cover abortion services, which does not sit well with the critics. A person who receives either of these benefits can obtain health care plan that takes care of elective abortion.
Wherever the court believes that a state ruling violates the fundamental right to privacy and freedom, the legislature is simply overruled. Also, if the Supreme Court finds that a state legislation is against the collective conscience of the people, it holds the right to strike down any state legislation including abortion.
With the ninth and the fourteenth amendments it becomes very difficult for any state or court to ban abortion, especially when the amendments are considered word for word. Whenever a state or court needs to rule otherwise they have to interpret. Justice Hugo Black stated that to dilute or expand the constitutionally guaranteed right of privacy and freedom one needs to substitute words (Guitton & Irons, 1995).
He added that these words must be ‘flexible’ enough to make room for interpretations that would lead to banning abortion. A direct denial of the court ruling is impossible as the judges would find such an act offensive, irresponsible and even unreasonable. Also, simple substituting of words will not result in the desired outcome as the judges’ personal opinions on the matter and on the laws will also reflect their decisions. After all, it depends on the judges as to which laws they deem unwise or unnecessary.
The dictum of Justice William Douglas was very useful in challenging state abortion laws. The dictum suggested an expanding right to privacy. This dictum was also based on the Ninth Amendment and protected by the Fourteenth Amendment. Based on these decisions further cases started gaining precedence in legislative standing.
For instance, the Eisenstadt v. Baird case extended the right to privacy even to the unmarried couple. In its shadow, the unmarried couple could exercise the same rights of contraception as married couples. Eisenstadt ruling only broadened the Griswold ruling. The ruling in the former was merely concerned with the contraception methods used by married couples. But in the former, the argumentative stress heavily relied on the individual, regardless of their marital status.
Eisenstadt argued that even the married couple is not a unit, it is an association of two people, which have different minds and personalities. Therefore, the condition of having the right to abortion based on this ‘union’ does not really have sound basis, as the right to freedom of choice does not depend on marital status but on the individual.
Impact of Court Rulings on Abortion and Implementedion
The impact of the previously discussed case rulings are immense. The Roe case analysis indicates that the Supreme Court ruled immensely in the favor of the ‘right to privacy’. In other words, women should be able to decide what they would like to do with their bodies. Griswold v. Connecticut also showed that the court upheld the values of the right to privacy.
Griswold v. Connecticut was different; the plaintiff was accused of violating the Connecticut Law of guiding couples in contraception. The Connecticut Supreme Court found her guilty, and Griswold took the matter to the US Supreme Court accusing that the court’s decision was a violation of the 14th Amendment.
The Supreme Court found the plaintiff not guilty and ruled that the Connecticut Law was unconstitutional. It appeared to be violating marital privacy. In this context any law or its provision that suppresses the fundamental right to justice and liberty does not have the U.S. Supreme Court’s support.
One needs to understand the fundamental complication in abortion cases. The US Courts do not have much trouble in advocating the right to privacy in the cases of sexual freedom or parenting. But the difficulty in abortion cases is that abortion is practically connected with these matters (Alvaré, 2013). As a result, the issues of sexual freedom, parenting or marital privacy would have different rulings by the court when considered without the context of abortion.
It is difficult to judge whether the implications of court rulings were successful or not. It depends on the perception of what constitutes as failure or success. A person that supports abortion rights would be displeased if a state banned the right of abortion. To this person, the implications would be unsuccessful. While to another person, who is extreme in protecting the sanctity of human life would be thrilled to have a ‘successful’ court ruling that bans abortion.
When evaluating court rulings, usually there are some discrepancies depending on the perception or the values of the evaluator. Critics of the Roe case would not be happy with the court ruling and would probably accuse court of not considering the unborn life. Also, it can be argued that the court did not put much effort into the religious and philosophical debate of when the life actually begins in the womb.
If the fetus is not considered alive then by all means it does not constitute as murder if abortion is practiced. However, who will decide that at what stage is the fetus a human being? And when terminating a pregnancy would be the murder of this ‘person’? Medical opinion becomes extremely important, as it can be a way to ease the philosophical debate.
The rulings of the mentioned cases do not shed much light on contraceptive methods. What kind of contraception methods are not considered an act of abortion? As far as the right to privacy and bodily integrity is concerned, it goes way back, even before the legislative debate of abortion. The hallmark cases such as Doe did not imply a novel agenda, they simply connected the issue of abortion with the 1891 right of privacy recognized by the Supreme Court.
Despite the controversies, there are victims on both sides. There is no doubt that some people are simply irresponsible and end up getting pregnant. To them, the right to abortion is a convenience where they have a health coverage that gets abortion done. On the other hand, about 4000 women in the US are denied the right to have an abortion, and as a result they carry unwanted pregnancies to term (Upadhyay, Weitz, Jones, Barar, & Foster, 2014). The freedom to choose does not get them the right to choose for them.
The 1992 case of Planned Parenthood v. Casey is an important development as it reflects the ‘plurality’ in the court rulings. As mentioned earlier Roe is a hallmark in the abortion legislation. However in Planned Parenthood v. Casey the judges rejected the trimester provision of the Roe case. Even though the court ruled that women’s right to privacy cannot be restricted, however the case opened its considerations to different frameworks and rationale. In this case the abortion was sustained by 5-4 vote. Even after so many years the rhetoric of this case remains unchanged (Devins, 2009).
The case opened up a broad discussion of stare decisis of the Roe case. It was also the solid basis for the argument that stare decisis is ‘flexible’. There are certain circumstances that make stare decisis necessary or just, especially when the arguments do not have sound reasoning. This happens more often in constitutional cases.
The plurality of the Planned Parenthood case suggested that overruling Roe would imply that the court is acceding to the pressure of abortion laws supporters, when the courts are expected to make decisions based on principles, constitution and legal justifications. It can be argued that the court felt an obligation to uphold the Roe ruling. However, it did give elaboration that when the doctor assists the patient regarding abortion they must provide them with material in deciding whether or not to choose abortion (Lazzarini, 2008).
This exposes the matter of how courts decisions can be influenced by the pubic opinions and political pressures. The criterion of stare decisis is not simply to honor and agree the previous court ruling but to uphold the rulings based on merit. If a decision or ruling was wrong in 1972, upholding it in 1993 does not make it any right.
Consequences and Recommendations
There are many factors connected with the matter of abortion. No matter which state imposes abortion laws of lifts the ban, certain rules are almost universal. If there is a threat to the mother’s life, there should be no hesitation in exercising the right to abortion. Similarly, a rape victim should have the freedom to abort the pregnancy. In cases of incest, there is a high likelihood of the child to develop deformity. The mother should have the right to abort because an incomplete miserable life or having a disability is unfair to the unborn child. In these three cases, there should be a straight forward decision regarding abortion.
An unintended consequence regarding abortion debate is the psychological impact on the women. Outside of court rulings and legislative processes, on the streets, there are protests held for and against the abortion laws. The demonstrators of anti-abortion laws hold placards and boards that call women murderers that choose to abort their pregnancies.
Most of the women that choose to have abortions do not suffer mental or psychological health issues, but some women do (Major et al., 2009). Therefore, whenever the debate about the abortion issues surfaces the matter of mental health of women must also be its crucial part. Otherwise, there will be more victims of abortion than the earlier perception.
Probably the most significant case in abortion legislation is Roe. The consequences did not show a surprise. Evaluating it in retrospect, it seems that the court put more weight on the psychological and mental satisfaction of women than their bodily health. The whole perspective of the ruling was from the perception of freedom of choice.
It is difficult to advise what the next step should be as it should be an ongoing debate. However, one thing that has been exposed is that nothing can be written in stone. The decision in 1973 could have been right in those times; the social values and circumstances of that era. But times change; the law and legislative process is supposed to reflect the changing times and social norms.
One sure way to proceed from this point on is to assess the timeline, trends and the general agreement or disagreement with the history of court rulings in abortion cases. Also, the courts and the policy makers need to agree upon ethical and moral boundaries. This must be agreed by the both sides.
Also, it must be a continuous process of improving the law. Scientific and medical research in pregnancy and contraception needs to be incorporated in the debate. New methods and technologies can assist in reaching a conclusion or legislation that satisfies both sides. The suggestions for continuous debate is also because of the changing values of the society and the role of religion.
There is a huge support for abortion laws among people who follow different religions. Therefore, how would law incorporate these elements into its constitution? It also needs to be seen whether the US Constitution is based on Christian values or not. Similarly, it needs to be seen what the future might look like regarding the role of religion in the constitution. The debate breaks down to freedom of choice versus sanctity of human life.
The debate shows both sides have their own line of reasoning and sometimes the debate gets out of hand and takes the form of protests. These protests portray the other side as evil or immoral. The pro-choice narrative has feminists and providers of abortion facilities as heroes, while pro-life narrative sees the anti-abortion activists as heroes (Schroedel, 2000).
Pro-choice narrative also looks into the reasons why a woman should be able to terminate the pregnancy. Other than the right to privacy or the liberty of choice, there are other complicated factors. If the government bans abortion then there is a high likelihood that women would turn to unsafe methods to terminate pregnancy (Haney, 2008). This endangers the mother’s life as well.
There are grey areas in the resolution to the issue of abortion. Some would agree that terminating pregnancy in the earliest stages is just and the governments should assist in the process. Which also implies that during the later stages of the pregnancy it would be murder of the fetus should the mother choose abortion.
The problem in this narrative is that what if a mother chooses to carry the pregnancy, but during the later stages, medical tests confirm that the child has disabilities or abnormalities that will shorten its life expectancy? It is a medical fact that certain diseases do not show up in tests during the earlier stages of pregnancy.
Such an example is not uncommon and cases have occurred in the past. Now, from ethical and moral standpoint, would it be a murder or mercy should the mother choose to terminate pregnancy? The answer is definitely not a straightforward one. Not all sections of the society will agree with the decision, regardless of what it is.
Under such circumstances it would be a popular opinion to terminate the pregnancy as the unborn child did not choose this life, it was given to them. And an incomplete life can be torturous. But such a narrative has its loophole because it implies that all people with disabilities should not have been born.
Regardless of supportive evidence to either side of the debate, political influence in the formation of abortion policies cannot be ignored. In the US the party in power influences the law making and policy formation. If the elective representatives are pro-choice then there is a high likelihood that abortion will be allowed. Conversely, a party in power that is pro-life would influence in banning abortion.
In these circumstances it is difficult to suggest future steps, since a lot depends on how the future will shape the politics in the US. As mentioned in the paper there are grey areas between the two sides. Perhaps, there can be common grounds in the resolution of this issue. Also, it must be considered that social values and the preferences of people vary.
Abortion is not a simple matter that can be fixed with one stroke of the pen. Regardless of which side the law favors there will be critics. Having said that, nations and people have to deal with complicated issues. There is no other way to deal with constitution regarding abortion but a resolution by the elected representatives of the people.
Instead of acknowledging the issue and using it for election campaigns to win states, serious debate and dialogue is needed in all states. If abortion laws differ from state to state, this will be a recipe for disaster. The 1973 ruling of the court in Roe case closed an ongoing public debate over abortion. It is recommended to reopen the debate and reach a consensus that not only satisfies the critics and supporters of abortions but also satisfies moral and social expectations for the foreseeable future.
Reference
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