Abortion Rights
Abortion Rights
ABORTION LAWS IN THE UNITED STATES
Abortion (also known as induced abortion, to distinguish it from miscarriage) is the intentional termination of a pregnancy prior to the time when the embryo or fetus is viable. Abortion rights refers to the claim that abortion is a liberty that is or ought to be protected by law.
INTERNATIONAL ABORTION LAWS
Internationally, abortion is legal for about two-thirds of the world’s population. Abortion laws vary widely. Abortion in some countries is available on demand (for any reason) throughout part or all of pregnancy. In some countries it is illegal under all circumstances. Some countries take a middle path in which access to abortion is regulated but not prohibited. In these countries legal restrictions, along with the seriousness of the reasons necessary for permitting an abortion, tend to increase along with the gestational age of the fetus. The reasons for permitting abortion may include maternal life and health (sometimes including mental health), pregnancy resulting from rape, social and economic factors, and defects in the fetus.
ABORTION LAWS IN THE UNITED STATES
In the United States, prior to the nineteenth century, early abortion was largely unregulated. Common law considered abortion at most a misdemeanor if it occurred prior to quickening (the perception of movement in the fetus, generally in the fourth month of pregnancy). Termination of early pregnancy was commonly spoken of not as abortion but as restoration of blocked menstruation, which could be accomplished by taking abortifacient herbs or drugs or by mechanical means. Between 1820 and 1900, however, laws were passed by every state prohibiting abortion at any stage of pregnancy, except to save the life of the pregnant woman. The American Medical Association (AMA) advocated for restrictive abortion laws on the grounds that pregnancy was a continuous process, that quickening was not a true indicator of the beginning of fetal life, and that to end fetal life through abortion was unethical unless the pregnant woman’s life was endangered.
During the period in which abortion was illegal, it was still practiced, whether outside the law or by physicians acting within the law (sometimes broadly interpreted). Public concern with the issue of abortion increased in response to the well-publicized case of Sherri Finkbine, an Arizona woman who sought an abortion in 1962 after taking thalidomide (a drug known to cause serious birth defects) during her pregnancy. From 1962 to 1965, the birth of thousands of babies with birth defects following a rubella outbreak further contributed to public concern. By 1973 eighteen states, with the support of the AMA, had adopted less restrictive abortion laws. However, in the late 1960s and early 1970s abortion came to be identified as primarily a women’s issue rather than a medical issue as it had been in the past. Women’s groups such as the National Organization for Women (NOW) and the National Association for the Repeal of Abortion Laws (NARAL) were founded. These and other groups identified abortion as a right of women and called for the repeal, rather than the reform, of abortion laws.
ROE V. WADE (1973)
In 1973 the U.S. Supreme Court handed down opinions in two cases, Roe v. Wade (an appeal of a case filed in Texas) and Doe v. Bolton (a Georgia case). The majority opinion held that the right of privacy that exists in the Constitution (often attributed to the Ninth and Fourteenth Amendments) “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (Section VIII). The court held that the right to an abortion is not absolute, meaning that it can be justifiably infringed for the sake of other interests such as those in “safeguarding health, in maintaining medical standards, and in protecting potential life” (Section VIII). The opinion held, importantly, that the word “person” in the Fourteenth Amendment did not “include the unborn” (Section IX). On the basis of these principles, the justices set up a framework for abortion laws in which each trimester (third) of pregnancy could be treated somewhat differently. In the first trimester, no state interference with abortion would be permitted. Beginning in the second, the states could regulate abortion for the sake of protecting the health of the pregnant woman, and at the point of fetal viability, the states could enact legislation designed to protect the life of the fetus, except when abortion was necessary to protect the pregnant woman’s life or health.
AFTER ROE V. WADE
This landmark decision was celebrated by supporters of the repeal of abortion laws (pro-choice groups) and decried by groups who were pro-life (those in favor of restrictive abortion laws, such as the National Right to Life Committee). At the state level, between 1973 and 1989 several hundred laws were passed to regulate abortion, for example by allowing a spouse or parent to overrule the pregnant woman’s abortion decision, requiring twenty-four-hour waiting periods, or by enacting other restrictions. Many of these laws were challenged and rejected because they did not accord with the framework set forth in Roe. Other laws, such as a requirement of parental notification for dependent minors, were upheld. In Webster v. Reproductive Health Services (1989), the Supreme Court seemed ready to reject Roe when it upheld a Missouri law that declared that human life began at conception and that required second-trimester tests of the fetus for viability. The decision referred to the trimester framework of Roe as “rigid” and “unworkable” (Devins 1996, p. 66). However, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the court affirmed the central principles of Roe, including “recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State” (Section I). The court rejected the trimester framework, adopting instead the standard of an undue burden and stating, “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability” (Section IV).
In addition to challenges from state legislatures, other challenges to (and affirmations of) the Roe framework came from members of Congress and from the executive branch. The Hyde Amendment to a 1976 Department of Health, Education, and Welfare appropriations bill resulted in an end to Medicaid funding for abortion. Congress considered several proposals that would have either affirmed or overturned the basic principles of Roe, but did not adopt any of them. Congress also used its oversight of federal judicial appointments as an occasion to question candidates concerning their views of abortion rights. Particular issues that have galvanized debate in the years following Roe have included that of late-term abortion and of the contraceptive RU-486, sometimes called the abortion pill.
Ethical debates concerning abortion turn on the questions of whether the fetus should be regarded as a human being with rights (and if so, at what point in its development it acquires these rights), as well as the extent to which a pregnant woman has a moral obligation to bring a fetus to term, even if doing so requires that her own interests be compromised or sacrificed. Depending on the answers to these questions, abortion may be viewed as primarily an individual woman’s right, or as an area in which some degree of state regulation is warranted.
SEE ALSO Abortion ; Pro-Choice/Pro-Life ; Roe v. Wade; Women and Politics ; Women’s Liberation ; Women’s Movement
BIBLIOGRAPHY
Devins, Neal. 1996. Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate. Baltimore, MD: Johns Hopkins University Press.
Hull, N. E. H., and Peter Charles Hoffer. 2001. Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence: University Press of Kansas.
Luker, Kristin. 1984. Abortion and the Politics of Motherhood. Berkeley: University of California Press.
Reagan, Leslie. 1997. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. Berkeley: University of California Press.
Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Legal Information Institute of Cornell University Law School. http://www.law.cornell.edu/.
Paulette Kidder