Abortion in the Unite States: Whose Right is it?
It has been enshrined in the United States Constitution that one preeminent right is the right to life, the preservation and the protection of that life. But that right has been made vague by the acts of the Supreme Court itself, when the Court ruled in favor of legalizing murder in the 1973 case of Roe vs. Wade. Since then how has the Court ruled in the issue of abortion? Were there any precedents that the Court has decided on issues relating to abortion or other abortion issues?
In ruling in the Roe vs. Wade issue in 1973 (410 U.S. 113) (1973), the Court gave the impression that the right of women in the United States would have legal access to an abortive procedure, barring any legislative impediment (National Partnership for Women and Families). This decision also defined the limit that the women who would avail of the practice protection in the first trimester of the pregnancy and the restrictions that a procedure can be legally performed in the last phases of her pregnancy (National). But the decision in Roe did not mean that the issue of abortion was just decided during the case itself. This decision was preceded by a long chronicle of women who had sought and gotten abortions (National). What changed was the legal perspective by which the procedure was afforded, giving the procedure a “cloak of legality” so to speak (National).
Roe vs. Wade
The proponent behind the landmark decision of the Supreme Court was Dallas County, Texas resident Jane Roe (Ian Shapiro 22). Roe, a single, unmarried and pregnant woman, had challenged the county’s District Attorney in March of 1970 (Shapiro 22). Going before the United States Supreme Court, she sought from the Court a definitive declaration on the Texas abortion laws (Shapiro 22). In her motion, she states that the Texas laws concerning abortion was unconstitutional at face value, and in addition sought an injunction to enjoin the defendant from enforcing the laws in her case (Shapiro 22).
In her statement, Roe averred that she was indeed with child, single and unmarried, that she wished that an abortion be performed on her by competent and licensed medical practitioners (Shapiro 22). She also alleged that the state of Texas did not allow her to avail of the procedure in the state since the law only allows abortions to be performed if the mother’s would be put in harms way (Shapiro 22). Lastly, she argued that the statute was in violation of several of her rights under the Constitution, citing the First, Fourth, Fifth, Ninth, and Fourteenth Amendments as basis for her argument (Shapiro). In the amendatory motion Roe filed, she argued that the case was to be applicable to other women who were placed in similar predicaments (Shapiro).
Since the Roe v Wade decision of the Court, the supreme interpreter of the law has ruled on at least 20 significant cases with regard to the availability of the procedure for women in a safe and legal manner (Planned Parenthood). But it should be mentioned that there were cases before the landmark decision of the court that also dealt with issues connected to birth control (Parenthood). In 1965, the Supreme Court ruled against the state of Connecticut, in Griswold v. Connecticut (381 U.S. 479), which enacted a law that banned the use of contraceptives (Parenthood). In citing the law as infringing on the Constitution, the Court ruled that the “right to privacy” clause in the law specifically affords that right in the decision of married individuals to be able to use such devices and drugs (Parenthood).
In another case decided by the Court, in Eisenstadt v. Baird (405 U.S. 438), the Court , in 1972, was to issue a ruling on a motion against the law in the state of Massachusetts in that the law only allowed that married couples could avail of the contraceptives being sold in the state (Parenthood). In ruling against the law, again the issue of the right of privacy was used as the standard by the Court (Parenthood). In their decision, the Court that the right to privacy is also afforded to unmarried individuals, hence the latter could also avail of the contraceptives (Parenthood). In succeeding decisions of the Court, the right to privacy continued to be the main barometer by which it ruled on cases on the issue of abortion (Parenthood).
In the aforementioned case of Roe v Wade (410 U.S. 113) (1973), the decision in effect made the performance of an abortion in the United States to be covered under the ambit of law (Jone Johnson Lewis). In effect the decision of the United States Supreme Court held that an individual woman, in consultation with the medical practitioner of her choice, was to be afforded the power to choose whether she would be able to terminate the life of the fetus in her womb without any restraints to be placed upon her, and with limited restrictions in the later stages of her pregnancy, that would be founded on the individual’s privacy rights (Lewis).
Roe v Wade in essence made all the laws enacted by state legislatures to be invalid (Lewis). But the restrictions of the state statutes that restricted access to such operations in the second phase of the pregnancy were applicable only if the purpose of the procedure was to save the life and health of the infanticipating woman (Lewis).
Recent issues on abortion
Recently, the Supreme Court broke onto untrodden ground when they decided in a 5-4 decision to uphold Federal limits on the conduct of abortions (Robert Barnes). In their decision, the Court narrowly upheld the 2003 Partial Birth Abortion Act that many in the government construed as allowing Congress to exercise its mandate in the promotion of life, inclusive of the right to live of the unborn (Barnes). It was also noted that the decision of the High Court was the first time that the Supreme Court justices have come to a consensual position that banned a particular procedure done in abortions (Barnes).
The majority in the decision stated that the Court was only following its earlier rulings with regard to the abortion issue (Lyle Denniston). In fact, even the dissenters in the Court opinion aver that the majority was indeed faithful, faithful to display their aversion to the precedents (Denniston). The majority decision was penned by Justice Anthony M. Kennedy that upheld a specific procedural ban in the performance of the abortion intervention (Denniston). Kennedy was joined by Chief Justice John G. Roberts Jr., Justices Samuel A. Alito Jr., who were appointees of the prime mover of this law, President Bush, as well as Justices Antoinin Scalia and Clarence Thomas (Barnes).
But the new decision, to the dismay of some quarters, did not overturn the controversial Roe v Wade decision (Denniston). When the decision was read to a silent chamber, as stated the decision did not overturn the Roe decision, but it was discerned that the ruling would mark a shift in the stance of the Court regarding abortion issues (Barnes). In the dissenting opinion penned by the lone woman on the Bench, Justice Ruth Bader Ginsburg, the majority decision is to be understood as an initiative focused on the gradual erosion of protecting and upholding a right that the Court has time and again upheld (Barnes). It was also mentioned in the dissenting opinion that the Court has stolen the right of women to make choice on their own, ones that are placed in the archaic notions of the past (Barnes).
The right to life, even if the life was formed at conception or in the actual birth of a child, must be guarded and protected. However, there should be balances that are put in place to guarantee that the life of the mother also is considered in the decision whether to have an abortion or not. We cannot play legal games if the life of the child is to be considered, especially in a society that places convenience above and beyond the place of responsibility. Life is a life; it should be honored, protected, and nurtured, not disposed of if it will diminish the “life” that one is enjoying.
Barnes, Robert. “High Court upholds curb on abortion”. Washington Post 19 April 2007 page A01.
Denniston, Lyle. “Court upholds federal abortion ban”.
Lewis, Jone Johnson. “Roe vs. Wade Supreme Court decision”.
National Partnership for Women and Families. “The Supreme Court and abortion access”.
Shapiro, Ian. Abortion: The Supreme Court Decisions 1965-2000. Indianapolis, IN: Hackett Publishing, Inc., 1998.
Planned Parenthood. “Copy of major U.S. Supreme Court rulings on reproductive health and rights”.