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Ethical And Legal Issues On Abortion In Usa

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Ethical and legal issues on abortion in the United States

Debolina Bose

BUSI 6303.04

April 19, 2004

Ethical and legal issues on abortion in the United States

The purpose of this paper, related to 'Abortion', is to throw light on various legal and ethical issues surrounding this highly debated topic in the United States. The paper includes only my personal views on 'Abortion' and few related famous cases which are like a landmark in the history of abortion. Abortion is not a modern aberration, but a practice common to human communities throughout history. Historically, early abortion was tolerated by the Church, and for centuries it was not punished under English common law. Nations which have passed abortion laws have done so for a variety of reasons, such as concern for women's health, the demands of the medical profession, demographic fears, religious beliefs, etc.

Before getting into the issues on abortion, I would like to give a brief history of abortion controversy in the United States. In the United States, abortion laws began to appear in the 1820s, forbidding abortion after the fourth month of pregnancy. Through the efforts, primarily of physicians, the American Medical Association, and legislators, most abortions in the US had been outlawed by 1900. By 1965, all fifty states banned abortion, with some exceptions which varied by state: to save the life of the mother, in cases of rape or incest, or if the fetus was deformed. In 1973, in the landmark case of Roe v. Wade (Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court ruled that the fourteenth amendment to the United States constitution provided a fundamental right for women to obtain abortions. The Supreme Court held that the "right to privacy," established by the Court's precedents in the contraception cases of the 1960's and early 70's, assured the freedom of a person to abort unless the state had a "compelling interest" in preventing the abortion. The Court then held that, though the state had an interest in protecting fetal life, this interest did not become "compelling" (i.e. adequate to allow banning an abortion) until fetal viability occurred in the third trimester of pregnancy (Planned Parenthood, n.d). Thus, all the state abortion laws that regulated abortion during the first six months of pregnancy (except for the purpose of protecting maternal health during the second trimester) were invalidated. The Supreme Court in 1973, in the case of Roe v. Wade (Roe v. Wade, 410 U.S. 113 (1973), declared most existing state abortion laws unconstitutional. The facts of this case are that a pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unprepared ness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and over broadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford. This decision ruled out any legislative interference in the first trimester of pregnancy and put limits on what restrictions could be passed on abortions in later stages of pregnancy. While many celebrated the decision, others, especially in the Roman Catholic Church and in theologically conservative Christian groups, opposed the change. With Webster v. Reproductive Health Service (Webster v. Reproductive Health Service, 492 U.S. 490, 1989) and Planned Parenthood v. Casey (Planned Parenthood v. Casey, 505 U.S. 833, 1992), the Supreme Court expanded the room, allowing the states that want to regulate abortion. Since 1992, elective abortions can be banned after actual viability (20-22 weeks), and pre-viability regulations only have to meet the new "undue burden" standard, meaning that a "compelling" state interest is not required so long as the law does not present a "substantial obstacle" to obtaining an abortion.

The latest major conflict over abortion laws has been over termination of late pregnancies, termed "partial birth abortions" by those who oppose them. 'Pro-choice' advocates maintain that such abortions are to save the life or health of the mother or terminate pregnancies where the fetus cannot survive birth or cannot serve much after birth. Pro-life advocates maintain that the fetuses may be saved and that many of these abortions are done in cases that aren't hopeless.

While writing on this paper and thinking about the present issues and laws on abortion, few questions were reeling in my mind, now and then - Is it wrong to abort a pregnancy? Always? Sometimes? Never? How do we decide? Is the fetus a person? Does the fetus be given the same rights as any other human? Do the pregnant women have the right to decide if she is going to carry the baby or not? In contemplative moments, nearly everyone recognizes that the issue is not wholly one-sided. Of the many actual points of view, it is widely held--especially in the media, that there are only two: "pro-choice" and "pro-life." In the simplest characterization, a pro-choicer would hold that the decision to abort a pregnancy is to be made only by the woman; the state has no right to interfere. And a pro-lifer would hold that, from the moment of conception, the embryo or fetus is alive; that this life imposes on us a moral obligation to preserve it; and that abortion is tantamount to murder. Both names--pro-choice and pro-life--were picked, keeping in mind, the two extreme sides of this issue. Few people wish to be counted either as being against freedom of choice or as opposed to life. Indeed, freedom and life are two of our most cherished values, and here they



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