Abortions Should Remain Legal - Essay Example

Abortions Should Remain Legal Laws that coerce women to carry their pregnancy to full term are in conflict with the U.S. Constitution in addition to any definition of decency and compassion. It is unconscionable that a country founded on and devoted to civil liberties could permit its citizens to resort to unsafe self-abortion procedures. However, before the Roe v. Wade ruling in 1973 which legalized abortion in the U.S., this practice was common. Prior to abortion being legal, many untold thousands of young women were injured and died while trying to end a pregnancy while the wealthy women were able to have illegal abortions performed safely usually outside the country. The rich were able to travel overseas or pay inflated high prices to a local physician who was willing to perform the operation but poor woman had to resort to more dangerous options. Criminalizing abortions never has and never will stop them from happening; it just harms women. Those persons opposed to legal abortions are the same ones who oppose programs that aid the poor and abused kids who resulted from unwanted pregnancies. They point to ‘family values’ and ‘Christian morals’ as the rationalization for discrimination of the impoverished, the loss of liberty, and the increased numbers of injured women. There will always be ideological differences between factions but the dispute as to whether abortion should be legal is a matter for the justice system, courts and judges, as are all legal matters. This paper considers the legal arguments of the abortion issue. The emotional arguments for and against are important from a social context yet but peoples ‘feelings’ about abortion will not decide whether or not the procedure remain lawful and safe. The 1973 Roe v. Wade U.S. Supreme Court case decided that women have the constitutional right to have an abortion performed up to a point when the fetus is viable, meaning when it can live on its own outside the woman’s body. The decision nullified any state law that disallowed a woman to have or a doctor to perform an abortion during the first trimester (three months) of a pregnancy. The ruling also restricted abortions during the second-trimester with the exception being if a woman’s health is in danger (“Roe v. Wade”, 1997: 312). Though the decision was controversial then and remains so today, the Court’s decision was right from a constitutional perspective. Detractors of the decision have commonly made arguments based on personal ethical beliefs which are immaterial when the language of the Constitution is scrutinized. Their moral objections regarding the Roe decision can be rapidly invalidate by evaluating the precedents of constitutional decisions by the Supreme Court and reading the specific wordage of the Constitution. There are, however, legitimate questions concerning the Constitutional issues of the Roe decision that merit answering. When most people speak disparagingly of the Court’s decision, they base their disapproval purely on moral justifications but lawyers, scholars and especially judges who criticize the decision should only do so based for constitutional reasoning in addition to expressing their moral objections. Opposition to the decision should speak to the 9th Amendment which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (“Bill of Rights”, 2006). Opponents say that the ninth, and all other amendments, do not explicitly mention abortion consequently the Constitution does not apply when trying to establish the legality of abortion rights. This view, however, clearly contradicts the short and succinct statement that is the Ninth Amendment which undoubtedly encourages the right to an abortion and all other rights whether or not explicitly stated in the Constitution. Just because a specific word or phrase does not appear, the Constitution remains the source for legal precedence for this subject as it is for all other civil rights matters. The Constitution also addresses another of the opponent arguments, that the question should be determined on the state level. The Ninth Amendment, in addition to the other amendments within the Bill of Rights, was originally understood to only relate to the federal government only, not to individual states. The Fourteenth Amendment (1868) expanded the Bill of Rights authority to include all states. Decisions since then have created solid precedent in the judicial interpretation of the Fourteenth Amendment which states, in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (“Fourteenth Amendment”, 2006). Most law experts are of the opinion that the language of the Fourteenth Amendment is rationally understood to indicate that citizens are protected from states violating the rights outlined by the Constitution. Those that condemn the Roe judgment have argued that the country’s founders used general terminology to construct the Constitution and did not mean for the ambiguous usage of the term ‘rights’ to infer the right to have an abortion. They further suggest that those who wrote then ratified the Constitution were ‘God fearing’ men who, like them, would have opposed this procedure. Even if this claim were valid on a constitutional basis, the conjecture that the Founders were entirely opposed to the procedure is likely incorrect. “A good deal of Justice Blackmon’s opinion regarding the Roe case was centered around the fact that prior to the latter part of the 1800’s, first trimester abortions were commonly allowable in the U.S.” (Dorf, 2003). The opposition’s opinion does take on some legitimacy when taking into account that the people who ratified the Ninth and Fourteenth Amendments thought the equal rights protected by the Constitution harmonious with the segregation of the races and the overt discrimination of women. However, both of these practices have been rightly condemned by invoking the precepts of the Ninth and Fourteenth Amendments. Two questions surface when discussing whether or not the Constitution legally protects a woman’s right to an abortion. The first is reasoning if the primary interests of women are affected by restricting access to abortion. The other questions if laws preventing abortions are defensible even though the Constitution does not address this specific issue. Answering the first question is relatively simple; yes, women’s interests are unquestionably affected. Courts commonly hear cases to decide if the rights of an individual are protected by the Constitution. If courts are compelled to determine whether or not the fundamental rights of citizens are protected, then the personal significance of the government forcing a woman to have an unwanted child surely applies. Recognizing that courts do have the power to intervene in decisions involving the rights of individuals citing the Constitutional precedence, could laws disallowing abortions still be justified despite this egregious intrusion on the civil liberties of women? Constitutional rights are not unconditional. The government does not have the legal authority to protect the rights of the unborn. The reason is that the Fourteenth Amendment begins by referring to “All persons born ... in the United States” (“Fourteenth Amendment”, 2006), demonstrating that the protections guaranteed by the Constitution apply to only those persons who are ‘born.’ Those against the Roe decision also assert that if the Constitution does not precisely address a subject, then the Congress, not the courts are the proper authority to decide matters such as this which have substantial moral implications. The Roe decision basically addressed this question by declaring the government’s concern for unborn life does not overshadow the constitutional rights of those already born and therefore their decision to end a pregnancy. The Court distinguished what it considers the murder of a child. On this matter, those who oppose abortion rights do have any legal rationalization for debate. Viability appears to be a suitable benchmark because in the early stages following conception, the fetus is not a cognizant being although many of religious conviction would argue that this being does have a soul. Viability is, to a great extent scientifically determinable but the presence of a soul cannot be. Therefore, “the line can only be drawn at the viability of the unborn as any other method by which to determine when abortions are considered murder is unclear” (Dorf, 2003). Criticizing the Roe decision simply by opposing it on moral grounds is easy but the solution is difficult and lies in offering an alternative that is understandable enough to be enforceable and is not subjective. The case for a legislative solution to decide socially troublesome questions and not the courts is often and extensively discussed. The Supreme Court decision that ended school segregation via the 1954 Brown v. Board of Education case was an extremely divisive issue but few oppose this decision though it was a moral subject decided on the language of the Constitution (“Brown v. Board of Education”, 2004). The important distinction between the Roe and Brown cases is that people eventually came to accept the belief that all races were entitled to the equal rights guaranteed by the Constitution. The debate progressed to how this equality could be realized. However, the abortion dispute remains an issue based mostly on moral grounds, not the best way to administer the law. Though the constitutionality concerning the Roe decision is often argued, it must be admitted that because the matter remains extremely controversial nearly 40 years after, opponents may be justified in believing abortion should not be thought of as a fundamental right. Fundamental rights reprove fundamental truths of a society. Rulings which prevented racial segregation now is widely accepted by the public therefore widely accepted as fundamental rights. The Supreme Court’s decision cannot be considered a mistake as its opponents claim unless they are willing to completely reject legal precedence and wording of the Constitution itself. Works Cited “Brown v. Board of Education: About the Case.” Brown Foundation for Educational Equity, Excellence and Research. (April 11, 2004). March 24, 2011 Dorf, Michael D. “Was Roe v. Wade Rightly Decided? Will it be Overruled?” CNN Law Center. (January 23, 2003). March 24, 2011 “Roe v. Wade: 1973.” Women’s Rights on Trial. 1st Ed. New York: Thompson Gale, 1997. March 24, 2011 “United States Constitution Bill of Rights.” Cornell Law School. Legal Information Institute. (2006). March 24, 2011 “United States Constitution Fourteenth Amendment.” Cornell Law School. Legal Information Institute. (2006). March 24, 2011 < http://topics.law.cornell.edu/wex/First_amendment> Read More