shift

Although abortion is legal throughout the United States, it remains an extremely controversial issue. Just a few months ago, a pro-life march was held in our own liberal city of San Francisco. This march was organized by two San Franciscan pro-lifers, Eva Muntean and Dolores Meehan. They had also organized an anti-same-sex-marriage march last year in April, which took place in North Beach. For the pro-life march there was a very large turnout, especially considering the liberality of the city in which it was held. The majority of the marchers, however, were brought in by bus from surrounding towns, which are predominantly conservative. They were met by a countermarch of angry pro-choicers, desiring to represent what they felt were the true liberal feelings of their city. This march put pro-lifers and -choicers together in one area to battle out their differences. Seeing each other’s groups so largely represented probably made each side consider their views on abortion and compare them with those of the other side, more deeply. This was probably especially true for the pro-choicers who found the crowd of pro-lifers to be, for the most part, very peaceful towards them. (To read an eye-witness account of the march, click on LINK TO NISHA’S EDITORIAL)

The issue of abortion is not a new one to ponder, but it is a law that most pro-choicers have come to take for granted. Pro-choicers are starting to get defensive about the issue, however, now that our president himself is a pro-lifer. Meanwhile, the pro-lifers are becoming more assured of their position for the same reason.

Although the reasons for identifying with a stance on the issue vary between individuals, the real point of divergence seems to be on the time when individual life begins. Many pro-lifers believe that life begins at the point of conception. But in medical terms, a pregnancy does not actually begin until the fertilized egg implants itself into the wall of the mother’s uterus. Many fertilized eggs are not even able to implant, but are flushed out of the mother’s body. Others are miscarried early on in the pregnancy, often without the knowledge of the potential mother. Pro-choicers believe that individual life for the fetus does not begin until it is able to live outside of the mother’s body. The law does not recognize a fetus as a “person” until it is able to live outside of its mother’s womb.

Most abortions, over 90%, are performed during the first trimester of the pregnancy. These can be medical abortions, in which drugs are given to the woman to cause the small ball of tissue, which would become a fetus, to be expelled from her body. The pregnancy can also be aborted by dilating the cervix to allow the vacuum to be inserted in order to remove the contents of the woman’s uterus. Other abortions, which are not performed at all clinics, can be done in the second trimester, and sometimes the third, although that procedure is very rare. An abortion after the first trimester is much more complicated and often traumatizing for the woman.

First trimester abortion was legalized in the 1973 landmark Supreme Court case, Roe v. Wade. A woman using the pseudonym Jane Roe (a play off of John Doe, and Roe as in fish eggs) appears before the Supreme Court to contest the constitutionality of a Texas statute, which makes “it a crime to ‘procure an abortion’ or to attempt one, except with respect to ‘an abortion procure or attempted by medical advice for the purpose of saving the life of the mother.” She claims that the Texas statute violates her right to privacy, a right extrapolated from the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments.

The Court lays down the facts of the case: Jane Roe was a single woman who, at the time of her pregnancy, desired to get an abortion. She instituted a federal action against Henry Wade, the District Attorney of Dallas County, Texas. The court denied her request to declare the criminal abortion statutes unconstitutional, so she appealed her way up to the Supreme Court.

The Supreme Court practices English Common Law, the fundamental aspect of which is a reliance on precedents. Mr. Justice Blackmun, who delivers the opinion of the court, looks to every precedent he can find. He claims that in the Persian Empire “criminal abortion was several punished.” But that, for the most part, in Ancient Greece and Rome “law afforded little protection to the unborn,” and abortion “was resorted to without scruple.” “Ancient religion did not bar abortion.”

He then notes that the Hippocratic Oath has long stood “as the ethical guide of the medical profession (created circa 400 BC), states that a doctor “will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner will not give to a woman a pessary to produce abortion.” Though, it is theorized, based on the attitudes found in texts such as Plato’s Republic and Aristotle’s Politics, that the Hippocratic Oath was not as strictly followed by the general Greek population as it was by the Pythagoreans.

Then he moves to the English Common Law (which was the basis for most state law into the 19th century). Early English law did not criminalize abortions preformed before quickening. Quickening is the point at which the fetus becomes animated. It was believed that this was the point at which the soul became a part of the fetus. Christian theology puts that time of quickening at 40 days for boys and 80 days for girls. An abortion before this point was not considered homicide. “Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed.”
The first English statutory law, the Lord Ellenborough Act of 1803, “made abortion of a quick fetus a capital crime, but it provided lesser penalties for the felony of abortion before quickening, and thus preserved the ‘quickening’ distinction.” In 1837 the quickening distinction disappeared. In 1927 willful abortion, except in the case of saving the mother, became a felony. In 1967 abortion became legal in the case that the child would cause more physical or mental harm to her or her existing children than aborting the child would, or if there is a “substantial risk that the child would suffer from such physical or mental abnormalities as to be seriously handicapped.”

As was stated before, most early state laws in the US referred to English Common Law. In the mid-1800′s states began to pass legislation criminalizing abortion, before and after quickening. But even into the late 1900′s states could be found that treated early pregnancy abortions less severely than those executed later in pregnancy. The reason for this legislation, The Court points out, may stem from the policy of the American Medical Association, which led a campaign to inform people of the dangers and immorality of abortion at any point during the pregnancy. In 1967 they reformed their policy to give exception to abortions in cases where the life of the mother is at stake, the child may be born with physical or mental defects, or where the pregnancy resulted from rape or incest.

The Court expresses some possible reasons for the criminal abortion laws created in the mid-1800′s. One is that the abortion was discouraged because of a high abortion-related death rate. But, the justice points out, the invention of antiseptics techniques, and the development of antibiotics, reduced the dangers of first trimester abortion to a relatively safe level (“as low as or lower than the rates for normal childbirth”). “Any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared.” The Court points out that “the few state courts called upon to interpret their [criminal abortion statutes] in the late 19th and early 20th centuries did focus on the State’s interest in protecting the woman’s health, rather than in preserving the embryo and fetus” and therefore theorizes that the criminal abortion laws of the 19th Century largely had to do with the health of the mother and not the protection of pre-natal life.

With precedents laid down, The Court finally gets to the constitutionality of the statute. He agrees that a woman’s “decision to terminate her pregnancy” falls under her right to privacy as described in Griswold v. Connecticut. This basically means that it is not within the interest of the state to regulate her abortion as long as it is safe. It is a private matter like the use of contraceptives. The District Attorney stated that it is within the state’s interest to protect the life of a person. The District Attorney then argued that “the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” The Court points out that the first mention of “person” in the constitution is “in defining “citizens” as “person born or naturalized in the United States.” He says that in “nearly all instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.”

The Court also asserts that the woman’s right to privacy dissolves when the abortion becomes dangerous for her in the second trimester, or when the child could potentially live outside of the mother’s womb in the third trimester. In the opinion of The Court since the Texas Statute makes no distinction like this, it sweeps too broadly, is too vague and “therefore cannot survive the constitutional attack made upon it.”

Now, the Texas Statute, and all other statutes like it, have two constitutional attacks on them. One, they violate the right to privacy. Two, they are, in violation of the Due Process Clause of the Fourteenth Amendment, too vague to exist. The Court then goes on to describe acceptable abortion legislation:
“(a) 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.
(b) 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.
(c) 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 preservation of the life or of the mother.”

Justices Rehnquist and White submitted dissenting opinions. Rehnquist claims that it is not explicit as to when Jane Roe filed her complaint, and therefore the court cannot rule in light of how the Texas statute may or may not have violated one of her constitutional rights during the a specific period of her pregnancy. “In deciding such a hypothetical lawsuit, The Court departs from longstanding admonition that it should never ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is applied to the case.’” Rehnquist also believes that the right to privacy does not encompass this case, based on the Court’s previous rulings on personal liberty. He also states that “the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is far more appropriate to a legislative judgment than to a judicial one.” In violating the due process clause of the Fourteenth Amendment, Rehnquist points out that “apparently there was no question concerning the validity of this provision or of any other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

Ever since Roe v. Wade people referring to themselves as Pro-life have been trying to reverse the Court’s decision. They have also picketed, held rallies, and some have even blown up abortion clinics. Even Jane Roe returned to the Supreme Court earlier this year, hoping to reverse the Court’s ruling. She did not succeed.

As the members of our political bodies (the Supreme Court, Congress) change and the country evolves, the policies and beliefs that govern this country change as well. As the population of the country polarizes morally and the culture war grows in tension issues like this gain more and more attention. The battle seems to be far from over.