Abortion and the Right to Privacy - Term Paper Example

Abortion and the “Right to Privacy” Introduction: Every human being, while living within a particular socio-cultural, religious, economic and political setting, is subject of judicial purview in such cases where his actions, in some way or the other, might violet the basic norms of social existence. On the other hand, it is also one of the basic duties of the legal and judiciary system to protect social inhabitants from any kind of arbitrariness resulted from socio-political or administrative institutions. The fundamental rights are such a set of rights that aim at ensuring dignified, humanitarian existence of common people, freed from all forms of socio-institutional oppressions. According to Justice Felix Frankfurter, fundamental right “does not vary according to the particular provision of the Bill of Rights which is invoked. The right not to have property taken without just compensation, has, so far as the scope of judicial power is concerned, the same constitutional dignity as the right to be protected against unreasonable searches and seizures, and the latter has no less claim than freedom of the press or freedom of speech or religious freedom.”1 The right to privacy is one of the important ingredients that constitute the totality of fundamental rights. Every individual has the right to enjoy his personal space, activities, relationships, sexual orientation and decisions related to reproduction without any external interference, be it personal, communal or governmental unless there is sufficient scope to believe that such actions or decision making of the individual are illegal or contradictory to the common social benefit. The entire process to live with human dignity is complete only when a person is provided with sufficient scope to relish his privacy. David Andrew Schultz in this context has observed that “Depending on the legal context, privacy refers to physical seclusion, informational secrecy, or a principle that protects one’s ability to make decisions about fundamental matters. Privacy can pertain to individuals, families, groups, and businesses. The constitutional right to privacy currently protects the freedom of individuals from unwanted and unwarranted intrusion by government in such domains as human reproduction, familial relationships, sexuality, decisions about dying, personal autonomy, and personal information.”2 Within purview of this observation and the definition of fundamental rights, which has already been discussed it can suggested that decision of an individual in the context of abortion also comes within the scope of right to privacy and unless any malicious intent of the decision maker is found, this issue should be respected and consequently protected by law under the provision of the “right to privacy.” Considering the general notion of common people about women frailty and the position that a woman enjoys in modern socio-cultural domain, it would not be difficult to find several such instances, where a woman has been identified as a criminal and her decision to execute abortion has often been observed and interpreted as an attempt to hide her guilt. Consequently, the woman not only has experienced tremendous social hostility but at the same time she has been forced to undergo tremendous psychological and emotional torture as well. While the constitution guarantees complete freedom to enjoy their respective fundamental rights to all citizens, creation of such situations clearly suggest infringement of the constitutional provisions. Thus, it is important to come up with stricter legal provisions and consequent administrative supervision so that the “right to privacy” is protected in every domain of social life, including the decision to abort. The Right to Privacy, debates related to Abortion and Legal Purview: The early dawn of American socio-legal history does not bear any explicit evidence in support of the Right to Privacy under the constitutional provision. However, since the late 19th century onwards inclusion of modernist traits in all the domains of social life did draw attention of jurists and legal scholars to ponder over the Right to Privacy and the ninth constitutional amendment included the Right to Privacy as one of the basic rights protected by the constitution.3 However, the Supreme Court also made it specifically clear that “the right to privacy is not absolute, since the government has a degree of legitimate interest …. The extent of one’s privacy under the Constitution remains controversial and continues to be defined and modified by statute and by judicial interpretation.”4 The reason behind non absolution of the Right to Privacy and under particular situations interference of the government is quite rational. Despite the fact that issues like human reproduction, sexual preferences, family, business and relationships are considered as highly personal but within each of these domains, taking the benefit of privacy rights, there is a possibility that criminal actions might take place. If the right to privacy is made absolute then the wrongdoers can use such rights as their defense against administrative actions and legal prosecution. However, it does not also mean that in every case the government or governmental institutions would start interfering, even when the issue of enjoying right to privacy is not harmful or does not contain any malicious trait. In the landmark case, Lawrence v. Texas explanatory judgment of Justice Anthony Kennedy has established a strong argument in support of the observation. The State of Texas came up with a legal statute that prohibited two people of same gender from indulging in any kind of sexual relationship.5 The judge, not only asserted that private lives of homosexuals should be respected but he also additionally specified that “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”6 This observation becomes extremely important within context of the discussion as it suggests that an individual has complete liberty to enjoy his liberty and the scope of such righteousness as enshrined under the constitution encompasses the liberty to enjoy issues like sexual liberty and right to abort till these factors are not amounting to any malice breaching the fundamental rights of others. An individual’s decision for abortion can be generated under various factors, including economic restraint, lack of social security, unwanted birth control, forced sexual intercourse and lack of awareness so on and so forth. If it is found that the abortion seeker does not have any malicious intention and she is jeopardized so deeply both personally and emotionally due to this factor then abortion can be granted and neither government nor any other person with knowledge of the conduct should make it public so that the limits of the abortion seeker’s fundamental rights as a human being, are violated. In another classic case, Olmstead v. U.S.7 as the provision of right to privacy was challenged Justice Branderis specified that “The makers of the Constitution undertook to secure conditions favorable to the pursuit of happiness …. They conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized man.”8 The social and cultural complications and the consequent difficulties that a woman has to face due to her decision to be aborted clearly violate this observation or jurisprudential rational. The right to privacy, while on one hand aims at protecting fundamental rights of common people, on the other it also aims to give them mental solace. The state activism and social oppression against women in case of their willingness to abort suggest that principles of the right to privacy are violated. In the Roe et al. v. Wade,9 issues related to abortion and their connections with the right to privacy were discussed deeply. Background of the case suggests that in the year 1970 Jane Roe (pseudo name) lodged a legal suit, claiming her “declaratory and injunctive relief”10 against the “constitutionality of the Texas criminal abortion laws which prohibited abortion except when “produced or attempted by medical advice for the purpose of saving the life of the mother.””11 The historical analysis and explanation of the jurists in the context of providing judgment to the case addressed three 19th century legal principles behind the origination of the criminal abortion laws in the 19th century. However the Court subsequently agreed the three principles, namely “(1) to discourage illicit sexual conduct, (2) to protect maternal health, and (3) to protect parental life”12 are still constructing the foundation of abortion law. While the first justification of the old structure has immediately been rejected by the Court, the second and third principles were considered carefully and those aspects were also revaluated according to the principles of changing jurisprudential rational about life, liberty and privacy. Despite the fact that the Court struck down the stature of the state of Texas as ultra-vires to the Constitution and asserted that the Constitution of the nation guarantees women the right to terminate pregnancy as a fundamental right, however, several of the subsequent issues of importance also came up: “This right was derived in two different ways from the text of the Constitution as that text has been interpreted in previous Supreme Court decisions. Justice Blackmun … cites a line of precedents that establishes the existence of a fundamental, constitutional right of privacy …. But … even if a constitutional right of privacy is constitutionally well grounded, it cannot plausibly be extended to include a right to have an abortion.”13 Justice Blackmun, however, has specifically identified the issue of controversy related to abortion and he consequently has admitted the “vigorous opposing views, even among physicians and of the deep and seemingly absolute convictions that the subject inspires.”14 According to the Justice: “One’s philosophy, one’s religious training, one’s attitude towards life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty and racial overtones tend of complicate and not to simplify the problem.”15 Justice Blackmun has correctly identified the scopes of debate and consequently he has attempted to answer the issue of dispute that incorporates individual notion about morality, socio-cultural upbringing, economic and political influences upon the development of an individual’s outlook to the social affairs and his belief. Consequently, in his judgmental explanation the social and individual notions about the practice of abortion has received diverse perspectives namely, ancient behavior, Hippocratic Oath, common law, English statutory law, American law, respective positions of the American Medical association, American public health association, and American Bar association.16 Such historical evolution and careful consideration of the issue from diverse perspective of social existence have leaded the legal committee to believe and on behalf of which Justice Blackmun has specifically suggested that “This right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress … associated with the unwanted child, and there is problem of bringing a child into family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. …. On the basis of the elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at the whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree …. The Court’s decisions recognizing a right to privacy also acknowledge that some state regulation in areas protected by that right is appropriate …. The privacy right … therefore, cannot said to be absolute…. We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”17 Roe v. Wade Aftermath: The questions related to abortion as a right to privacy were revoked in a much recent case Gonzales v. Carhart (2007).18 Constitutionality of the Partial-Birth Abortion Ban Act, 2003 was challenged in the case as it aimed at imposing penalty upon any physician who “in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion….”19 Behind stopping the habit of partial-birth abortion the Congress also emphasized on the humanist rational that “abortion involve the killing of a child that is in the process, in fact mere inches away from, becoming a ‘person’”20 and the partial-birth abortion “is a gruesome and inhuman procedure”21 that results in successful execution of the same. The Supreme Court in this case has regarded the Act to be valid and clearly pointed out with reference to Roe v. Wade that despite an act of abortion comes under the Constitutional protection of the Right to Privacy, however, state also has the Constitutional power to restrict abortion according to the viability and it also “has legitimate interest from the pregnancy’s outset in protecting the health of the woman and the life of the fetus that may become a child.”22 By establishing the validity of the Act, the Supreme Court has clearly suggested that despite the fact that an act of abortion comes under the legal and constitutional purview of the Right to Privacy, however, it does not imply that such right is absolute. Before encouraging the act of abortion it must be remembered whether the same has become necessary under life saving situation and the seriousness of the circumstances that might be affected if the child is born. Despite the fact that abortion decision is protected by the right to privacy, however, does not imply that the abortion seeker’s will has to be accepted unquestionably and consequently she should be provided with legal protection. In every such case, where the mentality of benevolence is absent and the issues of malicious intention are becoming conspicuous, those must be addressed and treated accordingly by legal provisions. Works Cited Breckenridge, Adam Carlyle. The Right to Privacy. Nebraska: University of Nebraska Press. 1970. Glenn, Richard A. The right to privacy: rights and liberties under the law. California: ABC-CLIO. 2003. Hennessey, Patricia and Garfield, Jay L. Abortion, moral and legal perspectives. Massachusetts: University of Massachusetts Press. 1984. Konvitz, Milton. Fundamental Rights: History of a Constitutional Doctrine. New Jersey: Transaction Publishers. 2007. Pollock, Earl E. The Supreme Court and American democracy: case studies on judicial review and public policy. New Jersey: ABC-CLIO. 2008. Schultz, David Andrew. Encyclopedia of the United States Constitution, Volume 1. New York: Infobase Publishing. Wardle, Lynn D. The abortion privacy doctrine: a compendium and critique of federal court abortion cases. New York: Wm. S. Hein Publishing. Wenz, Peter S. Abortion rights as religious freedom. Philadelphia: Temple University Press. Gonzales v. Carhart. 127 S. Ct. 1610. (2007). Lawrence v. Texas. 2003 U.S. LEXIS 5013. Olmstead v. U.S. 277 U.S. 438, 478 (1928). Roe et al. v. Wade. District Attorney of Dallas County. 410 U.S. 113 (1973). Read More