The Problem of Legal Abortion

The subject 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. To properly analyze the issue, the opposing viewpoints including the moral, medical and legal aspects must be argued with equal resolve and without bias. The abortion issue is multi-faceted and both sides of the issue provide credible, thought-provoking arguments.

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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 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 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. This discussion considers the legal aspects of the abortion issue. 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 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. It also restricted abortions during the second trimester unless a woman’s health was in jeopardy (“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 opposed 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.

Those that criticize the Roe decision 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. (Beach 1988). 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 1800s, first trimester abortions were commonly allowable in the U.S. (Dorf, 2003). The argument does take on some validity when considering that those 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.

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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. 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.’

Those opposed to Roe also argue that if the Constitution does not directly address an issue, then 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 terminate a pregnancy. 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). Criticizing the Roe decision purely on moral grounds is easy but the difficulty lies in offering an alternative that is not subjective and clear enough to be enforceable.

To political conservatives, abortion is the deciding factor when voting. It ranks above war, poverty, the national debt, health care and many other important issues as the top concerns of the country. “One experiment volunteers who identified themselves as political conservatives… rated gay marriage, abortion and ‘sexual immorality’ as greater threats to the nation” (Begley, 2007) Though the constitutionality regarding the Roe decision can be easily argued, it must be acknowledged that since the issue remains intensely controversial more than 30 years after, opponents may be justified in believing the right to an abortion should not be thought of as fundamental. Fundamental rights reprove basic truths in the functioning of a society. Rulings preventing the segregation of the races are now accepted by the public therefore can be viewed as fundamental rights. Abortion rights do not enjoy this universally held view so it is fair to debate the issue even on legal grounds though that is seldom the arena for debate. It is understood, however, that the majority of Americans do agree with the Court’s decision and believe it to be a fundamental right (Dorf, 2003).

The main consideration for a nurse is not the legality of the issue. Instead, it is the human element. The legal decision has been made and broadly accepted as correct for more than three decades. The nurse must be concerned with the health of the patient and the emotions involved in this decision which affects overall health. Women seldom abort potential offspring without much contemplation and reflection. It is a torturous decision that could leave psychological scars for life. (Reardon, 1992). “Women suffer long afterward, 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.). Most often, the father of the child, not wishing to accept responsibility, may beg or even threaten a woman until she agrees to the abortion. “In 95 percent of all cases, the male partner played a central role in the decision” (Zimmerman, 1977). The responsibility of the nurse is to provide compassion and skill for the patient whether or not they agree with their choice. Access to safe, legal abortions is a choice, one which should not be challenged by a nurse either on a legal or moral basis.

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.

Works Cited

Beach, W. (1988). “Christian Ethics in the Protestant Tradition.” Atlanta: John Knox Press, Begley, Sharon. (2003). “The Roots of Fear” Newsweek issue. Web.

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Dorf, Michael D. (2003). “Was Roe v. Wade Rightly Decided? Will it be Overruled?” CNN Law Center.

Elliot Institute. “Forced Abortions in America.” After Abortion. Springfield, IL. (n.d.).

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.

Zimmerman, Mary K. (1977). “Passage Through Abortion.” New York: Prager Publishers.

“United States Constitution Bill of Rights.” (2006). Cornell Law School. Legal Information Institute.

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“United States Constitution Fourteenth Amendment.” (2006). Cornell Law School. Legal Information Institute.

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