The Politics of Abortion - Essay Example

Understanding the politics of abortion Abortion is one of the most controversial issues in reproduction health for the past several years. People have taken several positions about this issue and until know, debates still continue. To help us understand what abortion is, let us first look into it nature and its history. Technically, abortion has different classifications, namely spontaneous abortion or miscarriage, induced abortion or that which is caused by a deliberate action, therapeutic abortion or that which is aimed at saving the life of the mother and elective abortion which is performed for any other reason other than those mentioned previously Roche, Natalie E. (2004). The first recorded abortion is the history of humankind dates back as early as the 1550 B.C (Potts, Malcolm, & Campbell, Martha. (2002). The Egyptian Ebers Papyrus record showed that the practice of induced abortion was already popular in Egypt at that time. On the other hand, the Chinese documents also showed that abortions among royal concubines had been practiced in China as early as 500 to 515 BC (Glenc, F. (1974). The methods used to abort a fetus in the older types were largely non-surgical and involve strenuous labor (Tietze, Christopher and Lewit, Sarah (1969). Although abortion has been widely practiced in different parts of the world in the olden times, laws regulating the practice of abortion were not really properly in place until the 18th century. At this time, common law in the United States and in England allowed the conduct of abortion before the fetal movement (Bracton, Henry (1968). Throughout the 17th and the 19th century, laws governing abortions in the United States were passed. However, it was not until the U.S. Supreme Court decisions in Roe v. Wade when the issue of the legality of abortion was finally settled. According to the decision of the court in this case, the legality of abortion can be traced back to the constitution itself. No less than the Supreme Court of the United States ruled that according to the constitution, the woman has the right to choose to have or not have a child. In essence, the decision of the High Tribunal is not really radical. In fact, the decision of the Court is just a logical extension of Court decisions that upheld the right of the person to privacy. Four constitutional pillars supported the decisions of Roe v Wade (Hull, N.E.H. (2001). First, according to the court, the decision to have an abortion is part of the fundamental exercise of a right, second, the government should stay neutral in cases involving the exercise of a right and that the legislature cannot enact a law that will push a women to make decisions, third, during the period where the fetus is not yet viable, the government can only restrict abortion to protect the health and well-being of the mother and fourth, after the time when the fetus becomes viable, the government may prohibit abortion to protect the life of the unborn but such prohibitions must be subject to exception such as to protect the life or the health of the mother (Roe v Wade). The decision of the Court in this case practically placed reproductive rights along with other basic human rights such as the right to freedom of speech and of religion (Hull, N.E.H. (2001). Given this situation, the state cannot prevent or compel a woman to make decisions regarding her pregnancy. In effect, laws and legislations which are meant to curtail the right of the woman to decide whether she will or will not have a child without any qualifications are rendered unconstitutional. The decision of Roe v Wade has a profound effect on the classical models of democracy especially on the areas of equality of powers. Note that the three branches of government, namely the Executive branch, the legislative branch and the judicial branch are given equal powers under the constitution. Although these three branches of government have different functions, they need to co-exist with each other. The decision of the court in the case of Roe v Wade affected the powers of the two other branches of government, especially the legislative branch. The Supreme Court decision in the case of Roe v Wade effectively prohibits the legislative branch to enact laws that prevents the women from exercising her right over her body and her unborn child. The ramifications of this ruling are quite complicated since this effectively tied the hands of both the legislative and executive department when it comes to anti-abortion legislations. We must understand that the functions of the three branches of the government are very specific and since the task of these branches of government are very specific; they cannot go beyond what is written under the law (Benhabib, Seyla, ed., (1996). To give us a clearer idea of the intricacies of laws surrounding abortion after the decision of Roe v Wade, let us look into the Partial-Birth Abortion Ban Act. Since 1995, the senate and the House of Representatives have tried to pass measures that ban procedures such as the intact dilation and extraction also known as partial abortion. Although the bill was eventually passed in both houses, it was vetoed by then President Bill Clinton on the grounds that the bill does not provide for health exceptions, thus it will run contrary to the decision of the Supreme Court on the case of Roe v Wade which allows abortion after the fetus becomes viable when the health or the life of the mother is compromised. Note that since the powers of three branches of government are equal and the judicial department is the sole branch that has the power to interpret the constitution, the legislative and the executive department cannot overrule the decision of the Supreme Court by enacting a legislation that runs contrary to the decision of the Supreme Court (Benhabib, Seyla, ed., (1996). In the event where the legislative department insists to pass laws that run contrary to the existing rulings of the Court, such legislation will be unenforceable. Following the history of this bill, this bill was eventually passed and signed into law in 2003 under the Bush administration together with the health clause which was the subject of controversy before. Another test to the case of Roe v Wade is the passing of the Unborn Victims of Violence Act which is also known as the Laci and Connors Law in 2004. Instead of directly attacking the rights of the woman to have to not have a child, the law skirted the issue and took the angle of the unborn child. According to this law, anybody who kills a pregnant woman can be prosecuted for two counts of deaths, one for the woman and one for the fetus in her womb. Technically, this law is valid given the fact that it does not directly contravene the decisions of the courts regarding abortion. Note that the provisions of this law do not directly touch on the issues taken up the Supreme Court in deciding cases of abortion. The interaction between the three branches if government on the issue of abortion is closely tied to the group model and liberal democratic model of democracy. Taking a closer look into the nature of these models, the liberal element of popular sovereignty and the element that limits the reach and scope of power of the government to preserve the freedom of the individuals under its jurisdiction (Dahl, Robert A. (1956) can be quite disturbing especially when it comes to the issue of abortion. We cannot help the fact that this model is subject to the "tyranny of the majority"( Dahl, Robert A. (1956). This means that the majority has the power to oppress the minority by imposing its ideals on these people. In the case of abortion, where the idea of abortion or the ban on abortion becomes acceptable to the majority, the voice of the minority can easily be drowned in the multitude of voices. How governments can protect its people from the tyranny of the majority? There are a number of ways to protect the very essence of democracy in a society. One of the best safeguards of democracy is the presence of a constitution that protects the right of the people. Note that it a democratic form of government, the constitution can only be changed through the votes of an overwhelming majority. The exercise of the right to suffrage is a powerful thing because it allows the person to choose. Another safeguard in the democratic model is the separation of powers which make it hard for a simple majority to impose its will. On the issue of abortion, the options that a person or group of person whether he or she is pro-abortion or against abortion is to go through the usual democratic channels. First, a group of people could influence legislations through lobbying, second, a group of person can seek the proper interpretation of the law through a petition for review in Court and third, through the exercise of the rights of suffrage in a referendum or election. Works Cited: 1. Benhabib, Seyla, ed., (1996) Democracy and Difference: Contesting the Boundaries of the Political. Princeton University Press 2. Bracton, Henry (1968) On The Laws and Customs of England, 341 (S.E. Thorne trans., George E. Woodbine ed. (1250 A.D. or thereabouts). 3. Dahl, Robert A. (1956) A Preface to Democratic Theory University of Chicago Press (1956), P.10 4. Dictionary of Modern Social Thought (2003), Blackwell Publishing, page 148 5. Glenc, F. (1974). Induced abortion – a historical outline. Polski Tygodnik Lekarski, 29 (45), 1957-8 6. Hull, N.E.H. (2001) Roe V. Wade: The Abortion Rights Controversy in American History (2001). Legal history. 7. John M. Riddle. (1992). Contraception and abortion from the ancient world to the Renaissance. Harvard University Press 8. Potts, Malcolm, & Campbell, Martha. (2002). History of Contraception. Gynecology and Obstetrics, vol. 6, ch. 8 9. Roche, Natalie E. (2004). Therapeutic Abortion 10. Roe v. Wade (1973) 410 US 113 11. Tietze, Christopher and Sarah Lewit (1969), "Abortion", Scientific American, 220, 21 Read More