Supreme Court Case: Roe v Wade
Abortion has been used as a method of family planning since ancient times. It is universally practiced but it is not approved in all countries. In United States (U.S), there were no clear statutes on the criminality of abortion before 19th century. Abortion was directed by a blend of statute and court decisions, as interpreted by jurists under common law. It was not criminal to kill a child in the womb unless it had attained the stage of “quickening”. Quickening is the stage in pregnancy when foetus movement can be felt by the woman. Past that stage, it was considered an offence to perform an abortion. There was no federal law regulating abortions, and many states allowed abortion only when a woman’s life was endangered. In 1821, a law was passed in Connecticut, which prohibited use of toxic substances to carry out abortions after quickening. A number of states followed suit by banning the use of the deadly substances.
The turning point occurred in 1973 in a landmark Supreme Court case entitled Roe v. Wade. In the ruling, the judges said that terminating a pregnancy was a right to privacy of women consistent with Ninth and Fourteenth Amendments (McBride, 2006). Previously, various states had passed laws that either strictly restricted or completely banned abortion. The state laws usually targeted the physicians and were meant to safeguard the life of both the unborn and the pregnant woman. Some women and feminist groups have applauded the ruling as reinforcement to reproductive healthcare right of women. The supporters have regarded the ruling as rescuer to women who had in the past been seeking unlicensed black market abortionists. However, the decision by the highest court in U.S has continued to elicit divided opinions. The opinions are based on the legality, morality, and social principles of the federal law. The following is an outline of the occurrences that led to the Roe v. Wade case, state restrictions of the law and the legal impact of the ruling in America.
Report by NATAL, a pro-choice American organization estimates that 1.2 million women aborted every year before 1973. Unlicensed physician and quacks carried out the abortions illegally. Due to lack of standard and safe abortion procedures, sometimes complications arose leading to death. Consequently, close to 5,000 maternal deaths occurred annually. Availability of safe and inexpensive abortions has been associated with the legality of abortion. Maternal mortality is lower in countries where abortion has been legalized. One reason for the increased safety is due to the availability of physicians who are well trained with recent knowledge in medicine. In addition, women are able to follow up treatment with the doctor without fear of prosecution. In America, legalization is claimed to have decreased mortality rates significantly from 4.1 to 0.6 deaths in 100,000 abortions. Studies across the world have revealed that deaths during abortion are uncommon in countries where abortion is legalized (Rahman et al., 1998).
Social forces have contributed immensely to sexual freedom of women, especially the feminist movement. Historically, abortion was an unsafe procedure that led to feminists like Susan Anthony to oppose it. During this period feminist believed that abortion could end if gender equality was achieved and women had more freedom. Others blamed men for the circumstances that led to abortion and effective birth control became the next fight for women. Notable in today’s state of affairs is that some people confuse abortion to be an alternative to contraception; it is not the case at all. Research has shown that pregnancy can occur even with the use of contraceptives. Statistics published by Guttmacher Institute indicate that only 8 percent of women who receive abortions were not using any form of contraception. In addition, 51 percent of the women who got an abortion were using a contraceptive when they got pregnant. Furthermore, 9 in 10 women can get pregnant accidentally even when using a method of contraception, with oral contraceptives having a 6 to 8 percent failure rate. Thus, it proves that women are not using abortion as an alternative to birth control (Jones, Darroch, & Henshaw, 2002).
Before the Roe v. Wade case, there were various deliberations concerning reproductive healthcare rights. In 1873, there was an attempt to ban sale and supply of contraceptives and tools and substances used for abortion. It was championed by Anthony Comstock and referred to as the Comstock law. The number of abortions increased greatly during the Great Depression due to poverty. Unfortunately, the abortions were leading to deaths of many women constituting 14 percent of the aborting women. In 1950s, hospitals were forming therapeutic abortion boards that would decide on whether to perform an abortion in case of a life threatening pregnancy. Planned Parenthood, a non-governmental organization called for a conference to discuss the need to reform abortion laws. In the next decade, Pat Maginnis became the first person to campaign for legalization of abortion. In another instance, a woman called Finkbine travelled to Sweden to seek abortion services after consuming thalomide (Wilson, 2013). The need for safe abortion was further articulated by the Clergy Consultation Service on Abortion who initiated a clinic offering referral services and illegal abortions (Lewis, n.d). Another group of women who performed illegal abortions was set up in 1973 at Chicago called Abortion Counseling Service of the Chicago Women’s Liberation Union. The group consisted of local laywomen, who were trained on safe abortion procedures and performed 12,000 abortions with safety near to modern hospitals. In addition, Women liberation movement was formed which was at the forefront of lobbying for legalizing abortion and making it safe. By 1973, 14 states had repealed abortion laws to allow abortion in circumstances of rape and incest. Four states including New York, Alaska, Washington and Hawaii had legalized abortions on demand with 24 weeks of pregnancy. Feminist groups supported women financially and fought for lower abortion charges. Women flocked to the available small number of clinics and other resorted to illegal abortions. In 1971, two cases, Doe v. Scott and People v. Belous, pronounced abortion laws in Illinois and California as unconstitutional. It is the two cases that elicited litigation against state abortion laws. In the following year, the Supreme Court declared it legal for all women to use birth control pills.
A legal action by Norma L. McCorvey, a woman living in Texas led to the landmark ruling. McCorvey was pregnant with a third child and wanted to procure an abortion. However, she knew that the laws in Texas did not allow her to carry out an abortion unless the pregnancy was due to rape or incest. She cheated to have been raped but she did not succeed due to lack of a police testimonial. Also, she claimed to have no money to terminate the pregnancy in a foreign country. She sought the legal counsel of two lawyers Linda Coffee and Sarah Weddington, who represented her in suing Henry Wade, Dallas Country District Attorney for violating her constitutional right. The Texas Federal court pronounced the Texas law as unconstitutional and the case proceeded to the Supreme Court. Jane Roe the pseudo name used for McCorvey argued that she had a right to safe abortion and the Texas law that allowed abortion only when the woman life was at risk was unconstitutional. The case was reviewed through for two years and finally a verdict was reached and read on 22 January 1973. The court repealed the Texas law and argued that the right to abort was encompassed in the constitutional right to privacy. The decision was reached by a 7-2 vote, which ruled in favor of Roe and pronounced that; Abortion was covered in right to privacy. That states could pass laws with a compelling interest. However, the states’ compelling interest was not valid in the period before viability. Even so, when the woman’s life was at risk, the state had to allow an abortion. Past the first trimester, a state’s compelling interest could be due to maternal health. Besides, the court stated that fetus was not a person and there should be no provisions based on the argument of saving an unborn person. Health was defined as including, physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient.
Although at the time of the verdict Jane Roe had already given birth, the decision was a win to many women whose rights had been held back by the state statutes. The ruling invalidated all the abortion laws that prohibited abortion at state level. The decision was based also on a precedent in Griswold v. Connecticut, in which the court had stated that right to privacy fall under Fourteenth amendment. The woman autonomy to abort in the first trimester was adopted in 46 states. The ruling has led to contentious opinions and so many disputes based on ethics, religion and science. In addition, the ruling led to many state rules aimed at restricting abortions.
The divisions on whether one supports abortion or does not led to the groups “pro-choice” and “pro-life” in U.S. A pro-life does not support abortion unless it is to save the woman’s life or the pregnancy was due to incest or rape while a pro-choice supports autonomy of the woman to decide whether to abort or not to. According to a 2013 survey by Gallup, 48 percent of Americans consider themselves as pro-life while 45 percent are pro-choice (NRLC, 2014). The statistics indicate a clear divide on the abortion issue, with some pro-life people being strict and against abortion even on rape and incest cases. The questions of human dignity and when should one be considered a human being have arisen from religious circles as well as from ethics. Despite the delight of women following the Roe v Wade ruling, criticism arose immediately, especially from the Roman Catholic faithful (ushistory.org, n.d). The Catholic principles on abortion are based on maintaining human dignity, and God being the giver of life, it is sacred. Thus, every human being should be treated with the utmost dignity, whether rich or poor. In addition, they believe that people should be protected from conception to death. Based on this belief, they condemn any human effort that aims at altering God’s plan on human life. Therefore, Catholic faithful believe that life begins at conception and hence the unborn child is sacred. Any calculated effort aimed at inhibiting birth or altering the birth process such as contraception is also condemned. Catholic teachings on the dignity of human life have created a heated political debate in the US (USCCB, n.d). Abortion has not only been condemned by the religion but also has become a political agenda. Each candidate and every political party are expected to state clearly whether they are pro-choice or pro-life. The voters have used a candidate’s stand on the sanctity of human life as a critical point of dismissal. While the democrats believe that an individual has the right to choose whether to abort or keep an unborn, the republicans are strongly opposed to abortion. However, each of the political divide uses their opponent’s stance on human life to their advantage.
From an ethical point of view, those who subscribe to Kant’s ethical theory have argued based on human dignity. Kant states that; “So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means” (Manninen, 2008, p. 2). Some scholars have argued that killing of the embryo is dehumanizing and cannot be justified by any noble cause. Others have interpreted it to mean it is acceptable when there is simultaneous treatment of each other as an end. Following the mention of human dignity in Kant’s ethics, the other issue has been whether the dignity should be extended to an embryo. Those who argue that conception starts when a sperm meets an ovary assert that it should be treated with human dignity. As Kant says, therefore, the embryo dignity as a human being must be preserved (Shafer-Landau, 2010).Therefore, Kant regarded an embryo as a human being, which has been supported by the pro-life group.
Criminal law has the substantive and procedural components. First, it defines the crime and then the criteria to be used in enforcing this law. Crime has been defined as a legally proscribed human conduct causative of a given harm which conduct coincides with a blameworthy frame of mind and which is subject to punishment. This definition outlines the characteristics that every crime must have to qualify as a criminal offense. On the hand in defining crime, the substantive law must have politicality, specificity, uniformity and the penal sanction. This implies that a criminal offense must made by the government; it should apply to all persons; it should have a form of punishment and should specify what should be done or be refrained from doing. The laws on abortion specifies in subsections, the person to perform the abortion, place of termination, the circumstances and conditions of termination and determination of the risk before termination. These specific sections of the law seek to address any concerns that would be raised by the patients, lobby groups and the medical practitioners (Reichel, 2013).
On abortion, the substantive due process allows federal courts to decide whether a law is just. It focuses on government regulation of matters such as sexual conduct, some family matters and abortion. In Roe v Wade, the Supreme Court expanded right of privacy beyond to include the right of a woman to abort in particular conditions. The precedent was on personal and family autonomy basis, and as outlined in the Fifth Amendment “No person … shall …be deprived of life, liberty, or property, without due process of law”. On the procedural due process, the Fourteenth Amendment clause that “nor shall any State deprive any person of life, liberty, or property, without due process of law” requires fair and timely procedures to be set by the state (Castellano, 2011).
On concluding that having access to a medically safe abortion was a “fundamental right”, the court affirmed that any restrictions by the state would be on grounds of “compelling state interest”. The Supreme Court acknowledged that states had legitimate and important concerns to protect the “mother’s health” and even “the potentiality of human life” inside her. Justice Blackmun who wrote the ruling divided the legal framework into three parts of the three trimesters of nine months gestation period. Each tier heightened the states interest and procedural latitude. Tier one involving the first three months or trimester was said to be least risky to carry out an abortion. According to the set legal standards, states have no real interest in restricting abortion to safeguard woman’s health and can only limit the procedures used to safeguard health such as requiring a qualified physician to perform an abortion. The second level was between the 12th week and the age of fatal viability, typically between the 24th and 28th week. In this tier, the state could regulate abortion in order to safeguard a woman’s life. Thus, state regulations could only be aimed at preventing maternal death and not the fetus. For this reason, physician could be required to counsel the mother on the possible risks for an informed consent but not advise against abortion. In the third trimester, past fetal viability, states can ban abortion on grounds of protecting a “potential life” but allow abortion if mother’s life is at risk. Although the judge advised states against provisions that would violate the right to terminate pregnancy, today there are several restrictions aimed at limiting a woman’s ability to terminate pregnancy (Masci et al, 2013).
Several Supreme Court cases have followed the Roe v. Wade decision and the following is a synopsis of the cases since the 1973 ruling.
- Doe v. Bolton (1973). It allowed that abortion could be carried out on a woman whose life is endangered even past the fetal viability period. Physicians can make medical judgment by considering… “all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well being of the patient. All these factors may relate to “health.”
- Bigelow v. Virginia (1975). Abortion clinics were allowed to advertise
- Connecticut v. Menillo (1975). States could also allow non-physicians to carry out abortions
- Planned Parenthood of Central Missouri v. Danforth (1976). Wives did not have to seek consent from husbands on whether to abort and minors too did not require written parental consent. A ban on use of saline amniocentesis for abortion was struck down.
Also in 1976, a limit was set on funding for abortions from federal budget (Medicaid and HHS) by the Congress (first Hyde Amendment)
- Maher v. Roe and Beal v. Doe (1977). It was ruled as optional for states to accept public funding of abortions except in cases of necessity. A state can choose to use funds to encourage childbirth over abortion in the first trimester. The Hyde Amendment was revised to allow states to deny Medicaid funding except in cases of rape, incest, or “severe and long-lasting” damage to the woman’s physical health (NCHLA, n.d; NRLC, 2014).
- Poelker v. Doe (1977). States were allowed to prohibit the performance of abortions in public hospitals.
- Colautti v. Franklin (1979). Court struck down a Pennsylvania statute that implied protection of the potential life past viability by choosing abortion technique most likely to result in live birth. The statute prioritized the life of the unborn to the woman.
- Bellotti v. Baird (II) (1979). Minors were required to obtain consent not necessarily from both parents. Initially the case had been filed in 1976 and returned to state court due to procedural inadequacy.
- Harris v. McRae (1980). Supreme Court supported the Hyde Amendment, and argued that it was not a constitutional right for a woman to receive state or federal funding for abortion. States were required to distinguish between “abortion” and “other medical procedures” because “no other procedure involves the purposeful termination of a potential life.”
- HL v. Matheson (1981). Requirement of parental consent allowed abortionist to inform one of the parents of a minor before carrying out an abortion without a judicial bypass.
- City of Akron v. Akron Center for Reproductive Health (1983). The Court struck down a law passed by the City of Akron requiring: (1) that abortionists inform their clients of the medical risks of abortion, of fetal development and of abortion alternatives; (2) a 24-hour waiting period after the first visit before obtaining an abortion; (3) that second- and third-trimester abortions be performed in hospitals; (4) one-parent parental consent with no judicial bypass; (5) and the “humane and sanitary” disposal of fetal remains (NCHLA, n.d; NRLC, 2014).
- Planned Parenthood Association of Kansas City v. Ashcroft (1983). Post-viability abortions were to be performed by a second physician and that a pathology report to be filed for each abortion. Abortions after the first trimester did not have to be performed in hospitals.
- Webster v. Reproductive Health Services (1989). The Court allowed prohibition of use of public facilities or personnel for abortions. Abortionists were required to check viability for pregnancies beyond 20 weeks.
- Rust v. Sullivan (1991). The Supreme Court rules that family planning clinics that receive Title X funding need to separate family planning and abortion components, and not obliged to answer clients’ questions about abortion.
- Planned Parenthood of Southern Pennsylvania v. Casey (1992). The court in a surprising turn of events upheld the state laws requiring; parental consent, anti-abortion counseling, and a waiting period and invalidated spousal notification.
- Mazurek v. Armstrong (1997). Court directed only licensed physicians should perform abortions.
- Stenberg v. Carhart (2000). Court strikes down state law restricting partial-birth abortion.
- Scheidler v. National Organization for Women, Inc., 547 U.S. 9 (2006): Court rules that pro-life protestors do not violate Racketeer Influenced and Corrupt Organizations Act (RICO).
- Ayotte v. Planned Parenthood (2006): Court refuses to strike down parental notice law on its face where only a few applications of the law present a constitutional problem.
- Gonzales v. Carhart (2007). Court upheld federal Partial-Birth Abortion Ban Act, enacted by Congress in 2003. The law banned use of an abortion method–either before or after viability–in which a baby is partly delivered alive before being killed (NCHLA, n.d; NRLC, 2014).
There have been several attempts by anti-abortion groups aimed at reverting Roe v Wade decision. One such attempt has been from pro-life lobbyists in recommending for constitutional recognition of life as starting from conception. Consequently, a fertilized egg would be considered human and be treated with the same dignity and rights. Nevertheless the personhood proposals have not passed into law. The highest number of bills was in 2012, when eleven states had proposed bills but none passed into law. One such bill was called The Defense of Human Life Act in North Dakota that defined a human being as “an individual member of the species homo sapiens at every stage of development”. Despite personhood failures, states have passed various provisions that have served to restrict women from aborting. At federal level, there is no legal definition of an embryo. One example of a personhood proposal has been the Sanctity of Human Life Act proposed by Paul Ryan, which intended to declare that “[T]he life of each human being begins with fertilization…” (Manian, 2013)
Report by Guttmacher indicates that 231 abortion restriction provisions were passed in various states in the last four years since 2010. States have enacted various provisions aimed at regulating abortion (Boonstra & Nash, 2014). On who should carry out abortions, only a licensed physician is allowed in 38 states and a second physician is required in 18 states. In addition, abortions are allowed to be performed only in hospitals past certain gestation periods in 19 states. States have also set gestational limits for allowing abortion, with 43 states prohibiting abortions unless the woman’s life is in danger. 19 states that have passed laws that forbid “partial-birth” abortion, and three of them focus on post-viability abortions. Another restriction has been on the provision of public funding for abortion. State funding for abortion has been prohibited in 32 states. Funding for necessary abortions through Medicaid is allowed in 17 states. Extra cost is required by private insurances to cover for abortion, and in 11 states it is covered only when a woman’s life is at risk (Guttmacher, 2015).
Another regulation has been through allowing healthcare institutions and healthcare providers to refuse to perform abortions. 42 states permit hospitals to decline request for abortion and in 42 states individual medics can refuse. In 16 states, the refusal is limited to private healthcare institutions. Counseling before abortion has been allowed in 17 states and includes informing the woman on reported studies of breast cancer linked to abortion; purported effect on long-term mental health of the woman and the probable infliction of pain on the fetus. There are regulations requiring women who want to abort to wait for some time before an abortion after counseling. Women have to wait for 24 hours in 28 states before an abortion can be performed. In 14 states, women have to make two trips to the healthcare institution. For minors, parental consent is mandatory in 25 states and in 38 states, only parental involvement is required. One or both parents are required (Guttmacher, 2015). The anti-abortion provisions by states have been found to reduce incidences of women terminating pregnancies. For example, restrictions on public funding through Medicaid have been found to effectively reduce abortions (Bitler & Zavodny, 2001; New, 2011).
The current debate around the abortion laws has generated some thoughtful, reasonable proposals about the flexibility of the law. Some women and feminist groups have highly-praised Roe v Doe as protecting reproductive healthcare right of women. Pro-choice supporters consider the ruling as rescuer to women from unsafe deadly and illegal abortions. However, the decision by the highest court in U.S has continued to elicit divided opinions. In 2010, the passage of the Affordable Care Act resumed debate on public funding and insurance coverage. There has been controversial debates’ surrounding the legitimacy of abortion. The debate has been two-sided with pro-choice who support abortion and pro-life groups who are against it. It has also taken an ethical issue based on religious and socio-cultural views of the unborn. With high rates occurring in United States, there is need for more regulation to govern the grounds on which women can obtain abortions. Men also lack reproductive rights and cannot question the women’s choice. This is despite the fact that the man would be required to support the child if the woman decides to give birth. Should they have a say on abortion decisions?
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