Should Abortion Be Legal - Coursework Example

Should Abortion be Legal? Introduction The of legal abortion has lead to a nationwide, often emotion-filled, debate that has endured for many years and will for many years to come. People are decidedly in either in the ‘pro-choice’ or ‘pro-life’ camp. There are no compromises to be negotiated: one concerned with the life of a child; the other, the freedom of choice and woman’s health. The arguments for and against are significant in a social context yet inconsequential because they will not decide whether or not abortions remain safe and lawful. The conclusion explains why legal abortions should remain the law of the land. Thesis Laws that force women to carry their pregnancy to term contradict the precepts of the U.S. Constitution as well as any definition of compassion and decency. It is unconscionable that a nation founded on and dedicated to civil liberties could allow its citizens to resort to dangerous self-abortion procedures. However, prior to the Roe v. Wade decision in 1973 which legalized abortion in the U.S., this practice was commonplace. Before abortion was legal, many thousands of young women were mutilated and died attempting to end a pregnancy though the wealthy were able to have illegal abortions safely. The wealthy were able to travel abroad or pay high fees to a local doctor willing to perform the procedure for a price but a poor woman must resort to less safe options. Prohibiting abortions does not and has never stopped them from occurring; it just acts to harm women. Those opposed to Roe also argue that if the Constitution does not directly address an issue, then the Congress, not the courts should decide matters such as this which have weighty moral implications. The Roe decision essentially addressed this question by asserting the government’s concern for the life of the unborn does not outweigh the constitutional rights of the born and thus their decision to allow pregnancy terminations. The Court did draw a line distinguishing what is considered murder of a child. On this issue, those that oppose abortion rights do have legal justification for debate. Viability seems to be an appropriate benchmark because in the early weeks following conception, the fetus is not a conscious being although those of religious conviction argue that it does have a soul. Viability is somewhat scientifically determined while the presence of a soul is not. 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). Those opposed to abortion claim that the fetus, viable or not, is a living being much the same as a child or adult. Mothers who have had abortions certainly cannot believe she is killing a living child or the practice would be a rare procedure. “I don’t think, in most cases, that the woman, who aborts her child, consciously believes she is killing a person. As philosopher Francis Beckwith points out, ‘why do women only kill their fetuses when confronted with practical difficulties, rather than their already born children, if they truly believe their fetuses are fully human?’” (cited in Smith, 1985: 16). Recognizing that courts do indeed have the authority to intervene in decisions involving individual rights citing the Constitution as precedence, could laws preventing abortions still be justified in spite of this egregious encroachment on the civil liberties of women? After all, constitutional rights are not unconditional. Why doesn’t the government have an interest in protecting the rights of those not yet born? The Fourteenth Amendment answers this question. It begins by referring to “All persons born ... in the United States” (“Fourteenth Amendment”, 2006), indicating that the protections under the Constitution refer only to persons who are ‘born.’ The Roe v. Wade case, brought before the U.S. Supreme Court in 1973, resulted in the Court’s determination that women have the constitutional right to have an abortion prior to when the fetus is viable, meaning when it can survive on its own outside the woman’s womb. The decision invalidated any state law that restricted a woman to have an abortion or a doctor to perform an abortion during the first three months (first trimester) of a pregnancy (“Roe v. Wade”, 1997: 312). Though the case was then and remains today controversial, the Court’s decision was correct from a constitutional context. Critics of the decision have generally made arguments based on personal moral beliefs which are irrelevant when the language of the Constitution is examined. Their moral arguments against the Roe decision can be quickly invalidated by weighing the precedents of constitutional decisions reached by the Supreme Court in addition to reading the specific wordage contained in the Constitution. There are, however, valid questions regarding the Constitutional issues of the Roe decision that deserve answering. When most people speak disapprovingly of the Roe decision, they base their objection purely on moral grounds but scholars, lawyers and especially judges who condemn the decision should only do so based on constitutional grounds in addition to voicing their moral objections. The argument against the decision should address 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). Those opposing legal abortions have said that the ninth, or any other amendment, does not specifically mention abortion therefore the Constitution is not applicable when attempting to determine the legality of abortion rights. This opinion, however, very obviously contradicts the short and to the point statement that is the Ninth Amendment which clearly encourages the recognition of abortion and all other rights over and above what is contained in the Constitution. Just because the word ‘abortion’ does not appear, the Constitution is still the origin for legal precedence for this issue as it is for all other civil rights cases. The Constitution also answers those that argue that the issue should be decided on the state level. The Ninth Amendment, along with the other amendments in the Bill of Rights, was initially understood to only apply to the federal government but not to the individual states. The ratification of the Fourteenth Amendment (1868) expanded the authority of the Bill of Rights to include all states. Judicial decisions since that time have formed solid precedent in this 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 scholars agree that the language of the Fourteenth Amendment is logically understood to mean that the people are protected from states infringing the rights outlined in the Constitution. Two questions arise when debating whether the Constitution legally protects a woman’s right to have an abortion performed. The first involves reasoning whether the fundamental interests of women are affected by the restricting of abortion. The other inquires if laws preventing legal abortions are justified even if the Constitution does in fact address this issue. Answering the first question is rather simple. Courts regularly hear cases so as to decide whether or not the rights of an individual are protected by the Constitution. If courts are engaged in recognizing if the fundamental rights of individuals are protected, then the personal interest of a woman being forced by the government to have an unwanted child certainly applies. (Dorf, 2003). Anti-Thesis The right to choose is the foundation upon which this country was built. Those who are pro-abortion trumpet this slogan while proclaiming a woman’s ‘God given right’ to make her own choices without government interference. This simple ideology is embraced by some but the arguments are flawed when the realities of abortion are examined. Studies have shown that most women are coerced into committing this murderous act of a living human and that there is no such thing as safe abortions as many are led to believe. Pro-abortion proponents generally espouse that the rights of a non-living tissue that feels no pain are non-existent. These untruths have been widely perceived as facts. In addition, the Founding Fathers of this nation intended to shape not only the legal but the moral direction of American society as well when they drafted the Constitution, the document that defines the laws of the nation. If they were alive today, the Founders clearly would be against the killing of innocent victims for reasons of convenience. Legal abortion enables fathers to force their will on mothers. Some women resort to abortion in desperation because they fear continued abuse. That fear is substantiated as women who refuse to abort have been subjected to serious abuses which have escalated to murder if the women still persists in her refusal. Murder is the leading cause of death for pregnant women and for what other motive could there be? “Sixty-four percent of women surveyed report being pressured by others into unwanted abortions” (Reardon, 1992).   Immediately following an abortion, the one(s) coercing the decision are relieved and seldom, if ever, give the inconvenient issue another thought. Women, on the other hand, suffer long afterwards, racked by overwhelming guilt and agonizing over their irreversible decision. This pain may last a lifetime as they are never able to forgive themselves (Elliot Institute, n.d.). Another myth espoused as fact is that the aborted fetus is no more than a cluster of cells, a bit of tissue unable to even feel pain. A developing embryo has a unique set of fingerprints as well as different genetic patterns than its mother. It is a human being unto itself. If one defines death as the stoppage of a heartbeat and murder as the forceful and intentional stopping of a heart then abortion is surely murder. If the existence of a heartbeat legally defined life, then almost all abortions would be illegal as the heart is formed by the 18th day in the womb. A British medical journal reported that when a pin is stuck into an eight-week-old fetus, it opens his mouth in a crying motion and pulls his hand away. By week five, eyes, legs, and hands begin to develop. “By week six, brain waves are detectable, mouth and lips are present and fingernails are beginning to form. By the eighth week the baby can begin to hear. Every organ is in place, bones begin to replace cartilage, and fingerprints begin to form” (National Right to Life Foundation, n.d.).  ‘Pro Choice’ activists argue that women should have access to safe abortions, that ‘a nation founded on and dedicated to civil liberties could allow its citizens to resort to dangerous self-abortion procedures.’ That too is a false premise. Ninety-seven percent of women who have had abortions describe intense pain experienced during the procedure despite the use of local anesthetics. “Compared to other pains, researchers have rated the pain from abortion as more painful than a bone fracture, about the same as cancer pain, though not as painful as an amputation” (Bulanger, Melzak & Lauzon, 1989). Studies also show that patients typically found abortion more painful than their doctors or counselors told them to expect and that younger women tend to have a more painful experience than older women. “Complications are common such as bleeding, hemorrhage, laceration of the cervix, menstrual disturbance, inflammation of the reproductive organs, bladder or bowel perforation, and serious infection” (Danforth, 1986). Overall, women who have abortions increase their risk of future miscarriages and sterility. Humiliated, scared and ashamed, a mother to be must generally go to a clinic, not a familiar doctor for the most traumatic experience of her young life. Women can suffer long term physical as well as psychological complications from an abortion procedure. The Constitution does not directly address the issue but simply because the word ‘abortion’ does not appear, the Constitution is still the origin for legal precedence for this issue. The liberal interpretation of the Constitution in this matter (7-2 in favor) is at the heart of the legal issue. Because the Supreme Court has become more conservative in terms of overall ideology since 1973, many believe that soon this interpretation will closer resemble Justice Rehnquist’s dissenting opinion regarding Roe v. Wade. According to Rehnquist, “The so-called right to abortion is not what the majority makes it out to be. The Court must be wrong to find any basis for this right in the 14th Amendment to the Constitution. To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment” (Pavone 2005). There are those that argue that if the courts cannot decide when life begins and because the Roe decision has yet to be overturned even though it was not based on a solid constitutional reasoning, then the Congress, not the courts should decide matters such as this which have weighty moral implications. Synthesis Those that criticize the Roe decision (“Roe v. Wade”, 1997). have complained that the nation’s founders used general terms to frame the Constitution and did not intend for the ambiguous use of the word ‘rights’ to include the right to an abortion. They further propose that those who ratified the Constitution were ‘God fearing’ men who would have opposed the practice. Even if this argument could be proved valid on a constitutional basis, the inference that the Founders were wholly opposed to the practice is probably inaccurate. 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 argument does take on some validity when considering that those that who ratified the Ninth and Fourteenth Amendments considered constitutionally protected equal rights to be harmonious with the discrimination of women and the segregation of the races. Both of these practices have however been justifiably condemned by authorization of the Ninth and Fourteenth Amendments. (“Fourteenth Amendment”, 2006). Both sides of the abortion issue contain legal, ethical and social considerations that provoke great emotions as this paper has shown. It is important that those of each opinion understand the opposing viewpoint if they truly wish to debate the topic rather than simply insist that their own viewpoint is correct. Only in this way can the national debate proceed with any hopes of resolution. If both sides understand the issues of the other, the emotional aspect can be lessened and replaced with reasonable conversations. Those opposed to legal abortions are also in the same camp that opposes programs that aid the impoverished and abused children who are the result of unwanted pregnancies. They point to ‘Christian morals’ and ‘family values’ as justification for the loss of liberty, discrimination of the poor and the increased cases of injured women. The first flaw in the pro-life argument is referring to the zygote, embryo and fetus as simply the ‘fetus.’ Various valid opinions are espoused as to the exact point where life begins in biological terms, but those of the pro-life opinion dismiss science in their argument and concentrate on the morality of abortion based on the prevailing value of life giving examples of unrelated life and death situations. They believe that the potential life growing in a woman is more important than that woman’s rights to make decisions regarding her body. They support this by arguing that women are still able to control their bodies to some extent through the use of contraceptive devices. They may have a morally just position but have also disregarded the law of the land in addition to science in the formulation of this opinion. The pro-lifers do not include science or the laws of society in their biased argument against abortive rights. It is based purely on personal morality standards which are viewed by many as questionable. This is supported by the majority opinion that does not consider a fetus, especially one in early stages of development, to be a person much the same as an acorn is not an oak tree. The majority also do not consider a clump of cells that is indistinguishable from the human form and has yet to develop organs and extremities to be entitled to the same rights to life as the mother. (Smith, 1985). Conclusion The ideological divide will never be bridged but the debate whether abortion should be legal or not is a matter for the courts, as are all legal matters. Roe v. Wade was and is a case that brings out emotions on both a moral and legal basis. The Supreme Court’s decision cannot be called a mistake like the critics call it unless those critics are willing to totally ignore legal procedure and the words of the Constitution itself. Abortion is legal and considered a right guaranteed by the Constitution but an appointment or two to the Supreme Court could swiftly take away the right at the federal level. References Beach, W. (1988). Christian Ethics in the Protestant Tradition. Atlanta: John Knox Press. Bulanger, Eliane; Melzak, Ronald & Lauzon, Pierre. (1989). “Pain of First-Trimester Abortion: A Study of Psychosocial and Medical Predictors.” Pain. Vol. 36, pp. 343, 345. Danforth, David N. (1986). Obstetrics and Gynecology. 5th Ed. Philadelphia: J.B. Lipincott, pp. 217, 257, 382-83. Dorf, Michael D. (January 23, 2003). “Was Roe v. Wade Rightly Decided? Will it be Overruled?” CNN Law Center. Available January 12, 2010 from Elliot Institute. (n.d.). “Forced Abortions in America.” After Abortion. Springfield, IL. Available January 12, 2010 from National Right to Life Foundation. (n.d.). “Fetal Development: From Conception to Birth.” National Right to Life. Available January 12, 2010 from Pavone, Frank. (June 19, 2005). “Justice Rehnquist’s Dissent.” The Conservative Voice. Available January 12, 2010 from Reardon, David C. 2002. Aborted Women, Silent No More. Springfield, IL: Acorn Books, pp. 11-21. “Roe v. Wade: 1973.” (1997). Women’s Rights on Trial. 1st Ed. New York: Thompson Gale. Smith, Rachel Richardson. (March 25, 1985). “Abortion, Right and Wrong.” Newsweek. p. 16. January 12, 2010 from “United States Constitution Bill of Rights.” (2006). Cornell Law School. Legal Information Institute. Available January 12, 2010 from “United States Constitution Fourteenth Amendment.” (2006). Cornell Law School. Legal Information Institute. Available January 12, 2010 from Read More