Abortion: Rights vs Socially Constructed Morality - Literature review Example

Abstract Perhaps no other issue in American society and politics has occupied the attention of Americans as has the topic of abortion. The groups stand firm: with people on the religious and political right firmly in the anti-abortion camp, and those more progressive and liberal promoting a woman’s right to choose While the topic has many facets more complex than simple opinion would suggest, the decision as to whether to keep a child or have an abortion under our rights as individuals is constitutionally, morally and otherwise in the hands of the woman. Rowe v Wade: The Nexus of Firestorm In the now often cited decision in Rowe v Wade, the United States Supreme Court, in January 1973, by a vote of seven to two overturned a Texas interpretation of abortion law making abortion legal in the United States. The alias "Jane Roe" was used for Norma McCorvey, on whose behalf the suit was originally filed, alleging that the abortion law in Texas violated her constitutional rights and the rights of other women. The defendant was the district attorney of Dallas County, Texas, Henry B. Wade. The decision held that a woman, with her doctor, could choose abortion in earlier months of pregnancy without restriction, and with restrictions in later months, based on the right to privacy. Based on the decision, all state laws limiting women's access to abortions during the first trimester of pregnancy were invalidated, and state laws limiting such access during the second trimester were upheld only when the restrictions were for the purpose of protecting the health of the pregnant woman. Essentially and from that time forward, abortion in the United States, illegal in most states and limited in others, became a woman’s legal right to choose. The basis of the decision simplified through complex legal Constitutional argument rested on the Ninth Amendment, part of the Bill of Rights. Not addressing the subject of abortion specifically, the Court in citing the Amendment in its decision rested on the portion of it that included the Bill of Rights and a person’s right to privacy, with the Court deciding "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people..." (U.S. Supreme Court. ROE v. WADE, 410 U.S. 113 (1973). 410 U.S. 113). Much has been written from a Constitutional viewpoint both supporting and challenging the Court’s decision, which for the purposes of this paper can not be analyzed from the complex perspective of Constitutional Law. For instance, Gargaro (2000), presenting her argument from an anti-abortion stance, calls the privacy decision “vague” based on the Fourteenth Amendment, citing decision remarks by Chief Justice Harry Blackmun... This right of privacy, whether founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. (Gargaro qtg. Blackmun 2000, par 2) Like many anti-abortion advocates, Gargaro (2000) uses the rather complex legal decision-making process of the Court [usual in many cases, not only Rowe v Wade] to disparage the decision on the basis that “The Court's decision is riddled with contradictions, law-making decisions [which (she contends) the Court is not supposed to do], and rather strange Constitutional interpretations” (Gargaro 2000, par 3). Yet to argue this point ad nauseum from complex legal arguments as subject to interpretation is simply using legal subterfuge to exact restrictions on personal behavior based on other biases that have little or nothing to do with the law. She is trying to use interpretations of the law to limit not only a woman’s right to privacy, but to choices concerning her body and indeed, her life as she chooses to live it—also a threat to the very precise constitutional guarantee of life, liberty and the pursuit of happiness.” Stepping back from over analysis of the constitutionality of Rowe v Wade, an interesting turn brings us to another argument. Comments from a law clerk at the time of decision, without realizing it, addresses the trimester stipulations in the decision while essentially removing its legal onus, placing the issue squarely where it belongs: in the hands of the individual living within a society, subject to its norms. "As a practical matter, [it] was not a bad decision--but as a constitutional matter it was absurd" (Right to An Abortion, no date, Introduction par 1). Clearly Blackmun was attempting to consider a societal view under which conditions for abortion would be generally acceptable—allowable in the first trimester, allowable for health of the mother in the second, and banned after six months. The trimester based decision brings us to another argument for choice based on scientific conclusions and evidence. Finally, those constitutional purists who reject Blackmun’s decision as interpreting the law--which incidentally is the job of the Court—might be reminded of the history of abortion in the U.S. Its inhabitants did not always have the moralistic unreasoning view prominent today among anti-abortionist activists, and, when the Constitution was adopted, and forward through the nineteenth century, abortion was rather an accepted practice. “Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today” (Baird 1992, p. 34). While basically referring to the earlier stages of pregnancy, women did have a choice, and later laws were even far less punitive than they are today. The Biological Argument The following claim by the anti-choice camp puts abortion in a category that for most people has a good deal of shock value: murder. It is that “killing people like you and me is wrong and... that...zygotes...formed by the fusion of a sperm and an egg at conception eventually develop into people like you and me...” (Boonin 2003, p. 2). The moral connection here is clear and, in a sense, unarguable if one ‘believes’ this to be scientifically true. The problem is what is scientifically true is not about what one believes, but what can be somewhat suggested empirically. Anti-abortion arguments from this quasi-scientific moral perspective simply do not work, and we must then conclude that choice advocates “have successfully defended abortion from the challenge that its critics have mounted against it”--from the perspective of life begins at conception—tapes of the unborn ‘screaming’ in the womb notwithstanding. (Boonin 2003, p. 2) Of particular relevance to this argument is the one which examines implantation and the subtle nuances of scientific thought combined with a moral imperative. If anti-abortion proponents can manipulate scientific reality to their own uses, science can do the same, thus the moral arguments, in a sense, cancel each other, or at best put conception right-to-life theories in a place where they can not and possible should not be argued. The argument presented by Boonin (2003) can be summarized thusly: “If the concept acquires a right to life at this stage [of implantation]..., then some forms of birth control result in the death of the concept before it acquires this right....” (92) No one, to my knowledge, on the anti-choice side has ever broached this important subject, reinforcing one of my personal contentions that stances against abortion are invariably selective to avoid science completely. Arguments for and against the scientific stance on a fetus’s right to life notwithstanding, in the end it is usually concluded with moral arguments of permissiveness disguised as science—one which Boonin (2003) says should be rejected, a stance with which I agree based on moral interpretation that in a free society is left to the individual to determine. The Moral Argument Moral arguments against abortion are usually held by those who [prefer] to think of the fetus as a person upon conception. Since even scientists can not agree on this point, the point itself in reasonable argument should then be considered moot at best. Questions then of morality vis a vie abortion become in a sense rather straightforward, and I prefer the argument forwarded by Kamm (1992) as the basis for my own... The efforts required in even a normal pregnancy, labor, and delivery are strenuous and risky, not merely inconvenient, and so they extend beyond what a woman is [should be] obligated [by a society of strangers] to provide merely because it will save a fetus's life. To give meaning to this observation, imagine a case in which a fetus is growing in a lab but will die unless it is transferred to a woman's body. Is she morally obligated to have it transferred, solely because of its need, even if it is a stranger to her? (78) In essence, if the beginning of life can not be agreed upon by the scientific community, and is merely preferred by moralists wishing to inflict their views on those who do not agree, one is forced to ask: who are these people to make such a decision for others? Child birth and rearing is an arduous task meant for certain individuals who choose it. Choosing it should be a right, not a demand of society, the religious right or politicians. Women did not fight and win equal rights in the past century only to have the ultimate right, the use of her body, subsumed by a group of people who prefer to inflict their moral preferences on others. Along with enforced morality, it is perhaps the emotionalism and sentimentality indigenous to the whole notion of children and childbearing that is the most disturbing and destructive in any reasonable discussion concerning abortion. The excerpt from the following article by Bunta (no date) speaks volumes regarding this issue. Bunta writes: I had three children, and from the time I became pregnant through the nine months, I knew there was a baby developing inside of me. A human being!... Life is so precious, and abortionists want to make it seem as if it is not worth anything” (par 4). It is this type of emotionalism that stifles and muddles rational discussion of the topic. “Many people are trying to have babies and can't. They would be so glad to take an unwanted child and raise it in a loving home...” (Bunta, no date, par 4). To the anti-choice people I would say it is not for the woman who does not want to have children, or a child, to deliver one to what amounts to a satisfied customer who, for biological reasons can not conceive. And in my view it is not up to Ms. Bunta or anyone like her to suggest it as an alternative to abortion. Worse than her previous statements are those in which the idea of murder is introduced with egregious implications connecting the killing of the ‘innocent’ unborn with Hitler’s killing of ‘innocent’ Jews. (Bunta, no date) In the end the debate over abortion has unfortunately become essentially political, egged on by right wing groups whose vote politicians are courting, and whose moral and political opinions they wish to superimpose on all women. In a democracy touting inalienable rights, the debate since Rowe v Wade has switched largely from the rights of women to the rights of the fetus—an entity whose status neither science nor religion, if the latter were honest, can precisely determine. What can be determined is the right of a woman to control the functions of her body; the natural and often unpredictable process of pregnancy; and the rather childish notion that all children forced to be born under anti-abortion laws are somehow ‘better off.’ As of now abortions are legal, essentially if one can afford to pay for them and they fall within certain trimester restrictions. However, even these rights come under daily assault by pro-life groups determined to enforce a moral and legal dictate upon the country on the basis of essentially their sensitivities and religious ‘feelings’ about the issue. The debate from any angle other than pure legal interpretation becomes arbitrary and divisive. The right to privacy under English Common Law, on which our laws are based, guarantees it. When Time calls the issue of bodily privacy" the core" of the abortion debate,” (Time 1972, par 1) I agree. I also agree with the article’s definition and final word on the subject: that a woman as citizens of a democratic nation have the inalienable right to "decide what happens to her own body" (Time 1972, par 1). And given the ambiguities of the remaining arguments, it is clearly up to the individual to determine their own moral guidelines in the situation. While there are instances where privacy can be invaded for the general good, the state must prove a compelling interest to do so. In this case, I see no compelling interest on the part of the state but adhering to moralistic views that may or may not be realistic or applicable to a progressive society or its people. Historically abortion has existed in all societies which seem none the worse for the practice. Furthermore, it is the contention of Lawrence Tribe, Professor of Law, Harvard University and mine as well that current attitudes and debates surrounding abortion these days have been “socially constructed” (Tribe 1992, p. *), not to mention irrevocably politicized to suit the moralistic resurgent needs of a puritanical ethic antithetical to the rights of women and to their control over their bodies as reproductive mechanisms. Bibliography Boonin, D. (2003) A defense of abortion. Cambridge, England: Cambridge University Press. Bunta, P. “Why abortion is wrong, my opinion.” (no date). Retrieved December 2, 2010 from: Gargaro, C. (2000) “Rowe v Wade: The unconstitutional decision.” Posted February 3, 2000. Retrieved December 3, 2010 from: Kamm, F.M. (1992). Creation and abortion: A study in moral and legal philosophy. New York: Oxford University Press. “Right to abortion.” (no date). Exploring Constitutional Conflicts (website). Retrieved December 3, 2010 on: Read More