Abortion: the Law and Its Impact on the Rights of Young Women and Victims of Rape - Coursework Example

Assignment Supervisor Abortion: The Law and Its Impact on the Rights of Young Women and Victims of Rape While the factof abortion has been with humans for their entire history, it has never been as hotly debated as it is today. It affects basic human rights, and democratic principles, and so has also become an important legal issue in countries around the world. The question is not only whether to legalize it or not, but also to decide if there are situations in which the law has to make exceptions. Because people’s opinions are based on very personal feelings: morals, values, and religious beliefs, almost everyone has a strong opinion on whether abortion should be legal. Society’s laws should reflect the values of the community but also protect the individual’s rights. Termination of pregnancy is an area where it is not always easy to balance these two. This is especially true when the women involved are young, and when the women involved are victims of rape. If the woman is young, her parents and the adult world around her may believe that they have some say over her decisions. If a woman has been raped, and has fallen pregnant, she has completely been robbed of her power to make decisions about bearing children already. Should the law then be able to take her power away from her even more? In a democratic society, every person should have the right to make decisions, but in the case of decisions about abortion, this right is not always given. The Law is necessary to prevent us from doing things that could harm ourselves or the other members of society. At the same time, public services should help to guarantee our rights under the law. Both of these are influences and related to our personal choices and values. (Kleinbach, 1-14) Abortion can be seen as part of all three of these. It affects the individual, especially younger women who have not planned pregnancy, and the victims of rape. It can also be argued that abortion affects the rights of the unborn fetus. But abortion could be seen as a public service to help members of society to be able to live better lives. It also falls into the area of our personal morals and values. If a woman has religious and moral beliefs preventing her from undergoing an abortion, she is allowed never to have one. If she does not share similar beliefs, should she be able to choose to have an abortion without any restrictions? Or would the law be interfering in her personal rights to freedom of choice and privacy? For men, the right to decide the fate of their own bodies and well-being is not questioned. They are not faced with a situation that could physically and emotionally change their lives nor with the option of fixing the situation by removing it. Across the world, the laws for abortion differ widely. In China, it is available on request up to 24 weeks for women of all ages. This promoted China’s earlier policies on restricting population growth, and the gender-based laws on the number of children permitted per family. Japan’s laws allow abortion up to 24 weeks to save the woman’s life, to protect the woman’s physical health, in cases of rape, and for economic or social reasons. These economic and social reasons cover the difficulties of young women having unplanned pregnancies and allow a woman to make her decision based on her income and position in life. A very open law exists in Canada – there is no criminal code on abortion and provincial health plans cover the costs of abortions in hospitals. Only private, non-governmental clinics are not paid for. In Great Britain, the abortion has to be approved by two doctors and may be legally done when the life of the woman has to be saved; her mental of physical health is at risk; for social or economic reasons and in cases of fetal abnormality. A case-by-case approach is taken in Spain. The rate of abortions performed has grown: in 1995, 5.5 women in every 1000 women had an abortion; in 2003, 8.8 abortions were carried out per 1000 women. This suggests that the law is being interpreted in a more progressive way. In South Africa, a mentally handicapped woman must get legal permission to have an abortion but the principle used in all other cases is that a woman’s constitutional rights cannot be removed by giving legal human rights to fetuses. (United Nations Population Division) According to Russ Kleinbach in Abortion: Law, Public Services and Decision “…society is repressive and uncivilized to the degree that its laws and structure (prevent) personal behavior …” The history of laws relating to abortion in the United States really began in the 1900s. In the early 1900s, restrictions began to be placed on surgery, generally, as the medical profession began to regulate itself. There were many people – often not formally medically qualified – who did perform abortions in reasonably safe conditions for the time. All surgery was, by today’s standards, unsafe. Some arguments claim that the restriction on abortions was started by the medical profession itself, because non-medical abortionists were being paid for their services – fees which should have been going to doctors only. (Wikipedia) As legal regulation increased, the number of women seeking backstreet abortions continued to increase, throughout the twentieth century, until the Supreme Court decision to make abortion legal in all states, in 1973. (Roe v. Wade 410US.113 1973) This response was welcomed in society, as it was seen as a way to lower the numbers of dangerous backstreet abortions. The number of women seeking abortions in the years before this ruling is estimated at 1.2 million. (Wikipedia) This statistic does not include the many women trying to self-induce abortions. Despite the Roe v. Wade ruling, there are many states that have restricted the right to have an abortion since 1973. This has been due to the influence of religious and morality-based organizations and less liberal sections of the political landscape. In 2003, President Bush signed into law a federal ban on abortion but this was overturned in 2004 by the National Abortion Federation’s lawsuit. (American Bar Association) The ruling is under appeal, so, even though abortion in the United Stated was legalized, there are still many people and organizations that object to this legalization. A very important basic right in a democratic system is the right to life. It is the question of when life begins during pregnancy that causes much of the debate around abortion. Lori Andrews, a professor at the Chicago-Kent College of Law is quoted on the American Bar Association’s website as saying, “We haven’t come to a clear societal, moral and legal understanding of what the embryo and fetus are.” Some states make taking drugs during pregnancy equal to child abuse. There have even been arguments that killing a pregnant woman should cause a double-murder charge. It is clear that the debate about the legal status of abortion is affected by this question about the start of life. In the United States, the landmark Supreme Court decision to make abortion legal in all states, in 1973, stated that the moment when life begins is not a scientific matter. Rather it should be seen as a religious and moral question. (Roe v. Wade) But this Supreme Court decision also did not make the right to have an abortion a basic or essential right. Instead, the court recommended a “trimester” system that is still in use today. In the First Trimester, the decision to abort a fetus can be made by the woman and her doctor. In the Second Trimester, individual state governments can make a legal decision to allow an abortion, based on the health risk to the mother. By the Third Trimester, the state can ban all abortions, except if there is risk to the life of the mother. The Supreme Court decision states that women have the right to decide whether they do or do not want a child based on the constitutional Right to Privacy. Today, 38 states have banned abortions after certain points in the pregnancy, ranging from fetal viability, to after Week 24, to in the Third Trimester. In addition, 10 states require the presence of a second doctor at the abortion to attend to the fetus if it is born alive. A further 10 states require a certification from a second doctor to state that the abortion is medically necessary. (Guttmacher Institute) After these restrictions have been kept, abortions can only be done if there is risk to the life of the mother. There are more restrictions in certain states and abortion laws are slightly different for teenagers. In most cases 18 is the legal age of adulthood. There are three main restrictions used to control abortions for women younger than 18: a teenager has to get the permission of her parents to have an abortion; a teenager has to go into a counseling process set up by the state before she can have an abortion; a teenager has to wait for 48 hours before she can have the abortion scheduled. These rules do not apply in all states, though. In Arkansas, for example, a teen would have to inform her parents, 48 hours before she got the abortion, that she was going to have it done but she does not have to get their permission. In California, teenagers do not need to have their parents’ permission at all. (Guttmacher Institute) What is interesting is to compare the Age of Consent (the age at which a person is allowed to agree to have sex with someone) laws in individual states with their abortion laws. In 11 states, the age of consent is 18. It is 17 in 8 states. In 32 states, the age of consent is 16. (Marie Stopes International) This means that in 40 states, young women are allowed to decide about having sex – they have the right to make decisions about their own bodies – two years before they are allowed to make further decisions about their own bodies – to have an abortion. In most states across the United States, rape victims are given access to abortion after appearances in court. Paying for an abortion, however, is also restricted. The Hyde Amendment upheld by the McCrae Decision (Law Week, Vol. 480, 4941-4957) limits the use of Medicaid for abortions. In the words of Gloria Feldt, president of the Planned Parenthood Federation of America, “Today you can get a safe, legal abortion if you’re older, if you live in the right state, if you’re not a federal employee or in prison, if you’re not on Medicaid and if your health plan covers it.” (American Bar Association, Spring 1998) It is clear that women of all ages and in all situations may find it difficult to get an abortion if they want one. It is even more difficult for women under 18, even if they live in states where they have been allowed to make decisions about sexual activity at a younger age. One further restriction on younger women: if a teenager cannot receive permission to have an abortion from her parents, she can receive a judicial bypass in some states. A judge would have to give her permission to have the abortion. This is perhaps an even more difficult thing for the young woman to do. In the abstract to his paper Social Meaning and the Economic Analysis of Crime Dan M. Kahan from the University of Chicago Law School writes: “… the importance of social meaning … social norms (allow) … communities (to) decide what to punish, how to punish it and how severely.” In the United States, the beliefs of the population should influence the laws on abortion. 26% of Americans believe that abortion should be allowed in all situations. Only 4% believe that it should never be allowed. 16% state that it should only be available to save a woman’s life. 34% have the view that it should be legal only in cases of rape, incest or to save the woman’s life. (CBS News Poll, October 2007) Only 1% of abortions in 2000 were requested because of rape or incest. 12,2% of abortions were requested because the women was too young. 25,5% of women asking for abortions gave the reason that they wanted to postpone childbearing. (Fine et al., 110-118) So, in the case of rape victims, it is clear that the American Public believes that abortion is justified. There are not too many rape victims seeking abortions, though, as a percentage of the total in 2000. The number of women who wanted abortions, because they were too young, is much higher. Also, women who want to postpone childbearing are many. If one agrees with Kahan, and a quarter of Americans believe that abortion should be legal in all situations, then the restrictive laws in individual states can definitely be questioned. If only 4% of the population is totally against abortion, there should not be any restriction placed on this act, or decision. For younger women, below the age of 18, there are many restrictions, as stated earlier in this essay. Again, the words of Gloria Feldt are relevant, “Without the protections of Roe, all other legal and civil rights are meaningless. If you can’t determine the fate of your body, all other rights pale.” (American Bar Association) But because of the restrictions that states are using, she claims, we are already seeing young women afraid to talk to their parents, and trying self-induced abortions, or back-street abortions. These women are in the same position as they would have been in 50 years ago. This is a very basic inequality – women are not allowed to make decisions about their bodies in the same way as men are. One of the most positive things about the outcome of the Roe v. Wade judgment was that it promoted equality of men and women. Marcia Greenberger, the co-president of the National Women’s Law Center is quoted on the American Bar Association website as saying that the philosophy of the Roe judgment gives meaning to the theory that women are equal to men. At the same time, a study commissioned by the University of Chicago found that “Changes from modest restrictions to abortion available … indicates that pregnancies rose in response to more liberal abortion availability.” (Levin & Staiger, Abstract) The balance that must exist between making abortion available and having it used as a birth-control method is also part of this debate. Younger women may see the possibility of abortion on demand as a way to avoid the responsibility of sensible behavior and good choices. A press release on the Marie Stopes International website, dated 18 December 2009, warns young people, under the age of 35, that the holiday season over December is a dangerous time. This organization promotes abortion on demand and at the same time warns against irresponsible behavior. The statement reminds its readers that under-35s are more at risk of unplanned pregnancy in holiday seasons. It also warns of increased alcohol and drug use, and the dangerous behaviors this may lead to. The balance between having abortion as a desirable solution for irresponsible behavior, and having abortion as an informed, mature choice has to be maintained. If the law requires us to look after our own well-being, and the well-being of others in our societies, then the question of abortion becomes even more complicated. (Tillich) The mental, emotional, and physical well-being of a young woman who has had an unplanned pregnancy would have to be thought of. Her maturity to be able to care for a child must be measured. Her future education and career would also be important. The effect that her pregnancy and the birth of her child would have on her community is also to be considered. The lives of her loved ones would change and whether they were better or worse off would have to be thought of. Also the right of the young woman to make decisions about her own body plays a part. An unborn fetus has to be compared to the young woman’s life. The fact that a woman has been raped leads us to believe that her rights have already been taken away from her by another member of society. Surely the law should then not remove even more of her rights by not giving her the right to decide? Again, the effect of giving birth to this child on the mother and on those close to her is important. As in the previous example, the unborn fetus is compared to the life of the woman. The principle that abortion is legal across all states in the United States of America is true. But the restrictions in individual states have changed the real access that women have to abortion as a solution to the problem they believe they have – especially for young women and rape victims seeking abortions. Works Cited Abortion Laws on http://Wikipedia.com American Bar Association: Online Journal: Spring 1998 http://www.abanet.org//hr/spring98hontz.html 18 December 2009 American Bar Association Roe v. Wade U.S. Supreme Court 410US.113 (1973) on www.abanet.org CBS October 2007 News Poll results on www.wikipedia.com Fine, L.B., Frohwirth, L.F., Dauphinee, L.A., Singh, S. & Moore, A.M. Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives Perspectives on Sexual and Reproductive Health (Vol. 37) 2005 3:pp.110-118 Kahan, D.M Social Meaning and the Economic Analysis of Crime (Abstract) The Journal of Legal Studies (Vol. 27) Chicago: The University of Chicago Law School, 1998 Kleinbach, Russ Abortion: Law, Public Services and Decision in Social Development Issues (Vol. 7, No. 2) Summer 1983 p. 1 Law Week (Vol. 480) 24 June 1980 pp.4941-4957 Levin, P.B. & Staiger, D. Abortion Policy and Fertility Outcomes: The Eastern European Experience The Journal of Law and Economics (Vol. 47) Chicago: The University of Chicago, 2004 Fact Sheet Marie Stopes International http://www.mariestopes.org.uk Marie Stopes International: Press Release: 18 December 2009 http://www.mariestopes.org.uk/PressReleases/UK The Guttmacher Institute State Policies on Later-Term Abortion 1 December 2009 from State Policies in Brief http://www.guttmacher.org Tietze, C. & Henshaw, S.K. Induced abortion: A World Review, 1986 New York:The Guttmacher Institute, 1986 The Guttmacher Institute, 2002 Induced Abortion Facts in Brief on www.guttmacherinstitute.org Tillich, P. Love, Power and Justice New York, Oxford University Press, 1990 United Nations Population Division of the Department of Economic and Social Affairs (1996) Abortion policies: A Global Review, 2002 on http://www.Pewforum.org Read More