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You are here: Homepage » Human Rights » Essays » Abortion Legal Constitution

Abortion and Legal Constitution

Should Abortion Be Legal

Thesis

The Constitution and the Declaration of Independence were written by men who believed in God, men who thought prayer was important, that life was sacred, and that many of our current-day controversial practices, such as homosexuality and abortion, were biblically and morally reprehensible. The reality that a few of our Founding Fathers were deists, rather than theists, does not change the fact that these documents were written by and for a generally theistic people. According to John Adams, “Our Constitution was made for a moral and religious people. It is wholly inadequate to the government of any other.” (Beach 1988).  Today, however, popular culture has forgotten that our nation was founded, in large part, on Christian principles, and that the Constitution was written for a “moral and religious people.”

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.

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‘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 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.

Anti-thesis

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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. There are some denominations of faith that are in favor of abortion. Both the Presbyterian Church and Episcopal Church, along with a few other denominations, have long standing pro-choice stances that the decision must be made by the woman since she is the most affected. A woman has the right to make the choice concerning her life and her body. 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. 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.

Essay Marking

Synthesis

We have been at a 30-plus year impasse since the Roe v. Wade decision in 1973 which legalized abortion in the U.S because the court system is unclear regarding when human life begins. The subject of legal abortion has lead to a nationwide debate that has endured for many years. People are decidedly in either in the ‘pro-choice' or ‘pro-life' camp. A highly emotional and heated debate continues to this day as to whether or not abortion is a morally defensible act. Pro-life groups are actively trying to end legalized abortion. The argument has its bases in this determination; when is a human being a human being? Is it at conception or when a person comes out of the womb? Those opposed to abortion believe at conception-those against use the clinical word “fetus” and argue it does not become a human being until the “fetus” is out of the birth cannel. As logic would dictate-those who believe a human being starts at conception-any termination of that human being would be considered murder in their eyes. Each of us has a right to existence and continued preservation of our life from time of conception until death.

Various studies through the years have proven that abortion is a horrendous option for all concerned yet the ‘right to choose' still exists because the Supreme Court has stated it cannot determine for certain when life begins. In sharp contrast, the penal code of the state of California recognizes the personhood of the fetus. The Scott Peterson verdict further exemplifies the right to life of an unborn child. “On November 12, a jury in Redwood City, California, convicted Scott Peterson of first-degree murder in the death of his wife, 23-year-old Laci, and second-degree murder in the death of his 8-month-old unborn son, whom the couple were planning to name Conner” ("Peterson Verdict Is Big," 2004, p. 4). The California Penal code, section 187, states:

“(a) Murder is the unlawful killing of a human being, or a

fetus with malice aforethought” (FindLaw, 2003).

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Scott Peterson was convicted of killing his wife and his unborn child and received the death sentence . The deciding factor in his death penalty sentence was the fact that he killed two people, his wife and his unborn child. If the state of California had not recognized the fetus as a person, Scott Peterson would not be on death row.

The life of a human, from the time of conception, should be considered equally as viable as any individual. Consequently, the right of life as well as the social definition regarding ‘right' and ‘wrong' types of deaths should apply to potential lives which can be described as possessing a future value of life, the same as any living person. Unnatural, premature deaths that are considered justifiable by society include those that occur during war-time in addition to those that result from ‘mercy killings' and the death penalty. Outside of these instances, society generally acts to protect all life even animals that have at least a chance of future potential. This is demonstrated by the life-saving techniques employed without question or hesitation in the case of people who wanted to end their life. Society will not allow it because it is simply wrong by any standard to end a life with potential. Abortion is murder. The current right to choose is a threat to the existence of a baby in the womb. It is the mother's duty to protect the child in her womb so that it has a chance for preservation of its life.

 



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