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Abortion as a Legal Issue

Abortion, a deliberate termination of unwanted pregnancy, has been known for thousands of years. Methods to perform or attempt an abortion have changed dramatically over time, from dangerous and brutal to safe and carried out by professionals. At the same time, attitudes towards pregnancy termination have shifted and as of now, greatly vary from strictly negative to permissive or even encouraging. Apart from medical assistance and social stances, another side to this issue is its legal grounds, for abortion laws have significantly fluctuated throughout the last centuries. Although most developed countries have legalized abortion fully or under certain circumstances, legislation is not immune to changes in predominant paradigm and social pressure. This paper deals with abortion from a legal standpoint and provides a brief historical overview and three relevant legal cases. Perspectives of how the controversy around the issue may unravel are also discussed.

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Historical Overview

Pre-modern Era

In every human society around the world, pregnancy has been accompanied by attempts to control it with varying degrees of effectiveness. Researchers found the first recorded evidence of induced abortion in an Egyptian “Ebers Papyrus” dated 1550 BC. The document listed several abortifacient herbs appropriate for use in the first, second, and third trimesters. Abortion left its trace in the history of ancient China as it was discovered that back in the sixth century BC, women would resort to taking lead and mercury to control fertility (Yarmohammadi et al. 292). Although primarily non-surgical in nature, ancient contraception, however, posed a grave threat to women’s health, and its repercussions often included infection, sterility, and even death.

In most societies of the pre-modern era, the abortion did not gain a legal status nor was it controlled by authorities. Assyrian law (1075 BC) may be a rare exception for mandating a death penalty in case “a woman of her own accord drop that which is in her” (“Ancient History Sourcebook”). In ancient Greece, abortion was not seen as an immoral deed, for a fetus was not considered a human until it was born. For instance, Stoics compared an embryo to a plant that would only become an animal after birth; Aristotle argued that even a newborn would not be considered human until it was 40 days old for a male and 90 days for a female (Yarmohammadi et al. 293). Fast-forward to ancient Rome when under the Oath of Hippocrates, medical practitioners were allowed to expel an embryo; however, it was imperative not to apply life-threatening methods (Yarmohammadi et al. 293). All in all, there has not been found any evidence that comprehensive legislation about abortion existed.

Modern Era and the 20th Century

It is argued that as more and more people started to gain private ownership over the property, the need to determine paternity and hence, control women’s sexuality and their health decisions appeared. Indeed, by the end of the 19th century, most countries restricted abortion in one way or another. Europe’s imperial countries can be considered the trendsetters as they later imposed abortion laws onto their colonies. According to Berer, the reasoning behind restrictions may be broken down into three main points (22). First, voluntary pregnancy termination was seen as a transgression of morality, a stance heavily influenced by religion. The second reason also takes origins in faith, as through prohibiting the practice, policy-makers and other authorities sought to protect the sanctity of life. Lastly, they claimed to be protecting women’s lives since to them, any abortion techniques seemed unsafe. However, the last point became invalid due to rapid medical advancements, thus making the abortion ban a deterrent and a punitive measure.

After the United States of America gained independence, English common law restricting abortion was adopted. By 1900, every state has made abortion a felony, although it was still possible to undergo the procedure in a small number of cases, including an obvious threat to a woman’s health and pregnancy caused by rape or incest. Despite legal attempts to put limitations, the practice was gaining more and more traction, partially due to Margaret Sanger’s efforts to promote family planning and advocate women’s rights to their bodies. The movement for reproductive rights gave rise to an array of Pre-Roe precedents taking place from 1964 to 1973. They resulted in decriminalization in several states, with Colorado being the first one to repeal the ban, and paved the way for the Roe v. Wade case in 1973.

Case 1. Roe v. Wade (1973)

It was no earlier than 1973 that the Supreme Court made a landmark decision and ruled states’ legislation against abortion unconstitutional, for such a medical decision was deemed belonging to a woman’s “zone of privacy” which was to be protected. The decision was rooted in the Griswold v. Connecticut (1965) case that granted American citizens access to contraception previously banned under the Comstock Law. The law was challenged on several occasions but dismissed on the grounds of the lacking evidence of actual prosecution or medical practitioners’ right to put forward claims on behalf of their patients. In 1965, Planned Parenthood League of Connecticut’s Executive Director, Estelle Griswold rechallenged the law, reasoning that it violated the 14th Amendment to the Constitution which resulted in the Supreme Court ruling the Connecticut Statute unconstitutional.

Fast-forward to 1973 when the case began with Jane Roe – Norma McCorvey’s fictional name chosen for the sake of protection – instituted a federal action against district attorney Henry Wade. Roe reasoned that since abortion was banned entirely in Texas, she would have to travel to other states to execute her rights to make private decisions. However, the need to cover travel expenses, which the plaintiff considered impossible at the moment, hindered access to medical services. In their decision, the Supreme court sought to balance the federal interests in regulating abortion and women’s autonomy. The decision to legalize abortion in the first trimester nationwide emanated from the Constitution’s Ninth and Fourteenth Amendments, which negate expansion of the governmental power and confirm citizen’s rights to life and liberty respectively (“The Constitution of the United States”). However, the Court “emphasized the durational nature of pregnancy”; hence, in the second trimester, abortion was permitted on the grounds of a woman’s endangered health (Shimabukuro 1). In the third trimester, the state claimed entitlement to regulation justified by its compelling interest in a fetus’ life.

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Case 2. Planned Parenthood v. Danforth (1976)

In 1976, two physicians from not-for-profit organization Planned Parenthood brought a case against the Attorney General of Missouri John Danforth to court. The plaintiffs questioned the constitutionality of the state’s statute regulating abortion and sought injunctive and declaratory relief. Namely, they endeavored to challenge the legal notion of viability defined as “that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life supportive systems” (Planned Parenthood of Central Missouri v. Danforth 1976). To the physicians, the description appeared to be vague and hence, open to interpretation. Furthermore, in their opinion, the obligation to gain a husband’s consent or parents’ permission in case a woman is underage and unmarried seemed to be compromising individual liberties.

After a thorough investigation, it was univocally decided that the provisions concerning spousal and parental consent, termination of parental rights if a child survives an abortion, and prohibition of saline amniocentesis were to dissent. As for consent issues, the court reasoned that the governmental authorities do not and should not have the capacity to delegate a veto power to anyone when it comes to a woman’s decisions in the first trimester. Thus, the panel of judges invalidated a broad portion of Missouri’s statute. However, a part of it was upheld, and namely, required recordkeeping and explicit informed consent, although women were no more obliged to provide explanations as to why they chose abortion.

Case 3. Hill v. Colorado (2000)

Despite the overall tendency toward a greater acceptance of abortion, American pro-life groups are still active in opposing this medical practice. Since the very start of the movement, in their pursuit of restrictions or even abolishment of abortion, the activists have infringed on citizens’ rights on numerous occasions. The protests have taken many forms one of which is so-called sidewalk counseling, in which pro-lifers approach individuals on their way to medical facilities, especially Planned Parenthood centers. Further, they practically force a conversation about the consequences and moral implications of abortion onto the said individuals, attempting to change their minds. One may rightfully point out that although the activists exercise their right to free speech under the First Amendment to the Constitution, in no way should they be blocking other people from entering a medical facility. If they do, the situation must be seen as a violation of their rights to liberty under the 14th Amendment.

In 2000, a conflict of such nature resulted in a legal case filed by Hill against Colorado and a United States Supreme Court decision regulating pro-life activists’ actions. The court emphasized the point that the concerns of both sides were valid; however, it was imperative to focus on “access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests” (Hill v. Colorado 2000). It was established that protesters and activists could not approach within eight feet of any other person without consent regardless of the purpose.

Abortion Policy Around the World and Future Perspectives

Although there is an observable trend toward liberalization and decriminalization of abortion around the world, the policies and statistics may vary significantly by country. It is true that by the end of the twentieth century, 98% of countries gave women permission and access to this medical procedure; however, there must be further investigation into the availability of the services (Berer 23). First, depending on the country, policy-makers outlined different grounds for abortion, thus, restricting access for those women, whose motivation and reasons behind the termination of pregnancy do not comply with the law. For instance, in 63% of countries, abortion is possible in case a woman’s health is endangered. However, only 43% of them recognize the validity of abortion when it was caused by rape or incest; even a smaller percentage (39%) allows expelling a fetus if the latter has severe abnormalities. Lastly, only a quarter of countries provide abortion on request (Berer 23). Therefore, legalizing abortion and making sure this procedure is available, accessible, and affordable is still a work in progress.

Historical and recent data has proven time after time one simple point: restricting abortion does not result in less abortion but in more illegal and hence, unsafe abortion. According to a 2017 WHO report, 45% of the world’s abortions are unsafe; together they constitute a soaring number of 25 million unsafe abortions per year (“Worldwide, an estimated 25 million unsafe abortions”). On their website, WHO provides a Map of Unsafe Abortion, which I compared to the Center for Reproductive Rights’ Abortion Law Map (Center for Reproductive Rights). It became clear that the regions where most cases of unsafe abortion occur are the regions where the countries with the strictest abortion laws are concentrated. I, for one, am convinced that the argument that abortion restrictions serve a noble purpose of keeping a woman’s physical and mental health intact is fallacious. If health institutions of any given country were truly interested in a woman’s wellbeing, they could as well attempt to eliminate the dangerous abortion practices and offer a safe alternative.

Long-term future perspectives seem somewhat optimistic although one may see and predict which obstacles are present or may appear on the road to the universal right to abortion. As of now, in many countries, pro-choice initiatives have been confronted with political and religious opposition. At the same time, another significant issue appeared to be insufficient legislative systems in place, as they allow for contradictions and vague definitions which hinders the implementation of new laws. As I see it, to make progress, it is imperative to gather a critical mass of abortion proponents, be it politicians, health practitioners, teachers, and so on. On the other hand, women themselves are well capable of making a change and being the change, for instance, by leading movements which has proven to be effective in many countries. On a larger scale, I am of the view that comprehensive family planning policies are needed. Sexual education and availability of contraception may help citizens make more thoughtful decisions and thus, decrease the abortion rate.

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Conclusion

Abortion has always been a complex issue that has been approached in a variety of ways throughout human history. This medical practice has been known since ancient times when the methods were overwhelmingly non-surgical, often inefficient, and dangerous. Despite tangible medical advancements that let this procedure become safe, unsafe abortions still occur en masse around the world. As it was shown in this paper, the phenomenon is mainly caused by unreasonable governmental restrictions. However, there is a potential for abortion to become a fundamental women’s right, even though it may take time and the involvement of experts and authorities on all levels. An example of the United States was given; three Supreme Court cases two of which revoked certain abortion restrictions illustrated how a country might make progress toward a universal right to abortion. The third case showed how there might be found a middle ground between pro-life adherents and women willing to undergo abortion so that no one’s constitutional rights are infringed upon. It is also argued that abortion may be part of or overlap with other complex issues, namely, health literacy and family planning.

Works Cited

“Ancient History Sourcebook: The Code of the Assura, c. 1075 BCE.” Fordham University, Web.

Berer, Marge. “Abortion Law and Policy Around the World. In Search of Decriminalization.” Health and Human Rights Journal, vol. 19, no. 1, 2017, pp. 13-27.

Center for Reproductive Rights. The World’s Abortion Laws Map 2013 Update. 2013, Web.

The Constitution of the United States. The Bill of Rights & All Amendments. www.constitutionus.com

Griswold v. Connecticut, 381 U.S. 479 (1965). Supreme Court of the United States, Web.

Hill v. Colorado, 530 U.S. 703 (2000). Supreme Court of the United States, Web.

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). Supreme Court of the United States, Web.

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Shimabukuro, Jon. Abortion: Judicial History and Legislative Response. 2018, Web.

“Worldwide, an Estimated 25 million Unsafe Abortions Occur Each Year.” World Health Organization, 2017, Web.

Yarmohammadi, Hassan et al. “An Investigation into the Ancient Abortion Laws: Comparing Ancient Persia with Ancient Greece and Rome.” Acta Medico-Historica Adriatica, vol. 11, no. 2, 2013, pp. 291-298.

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