Abortion is the termination of pregnancy, which destroys the fetus. The procedure may be a result of miscarriage where the fetus is delivered due to underlying fetal or maternal complications. Conversely, pregnancy may be ended, for instance, in the case of surgical or medical abortion, where the fetus is removed by using instruments or drugs following a voluntary decision medical concerns (Zamberlin, Romero, & Ramos, 2017). This type of abortion has been exercised by societies throughout history. Philosophy, religion, culture, medicine, and social implications have contributed to different public opinions leading to the divide between morality and legality of abortion considering the life of the fetus, as well as that of the mother.
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Historical, Cultural, and Religious Perspectives of Abortions
Ancient Greeks and Roman engaged in this practice without law or religion, representing significant hindrance to abortion. Philosophy and some religions supported the termination of pregnancy, especially in the early stages. For instance, Aristotle, who is said to have approved practice, expounded on the theory of life, stating that the fetus did not have a soul until the last stage of development and did not have logic until delivery (Gerdts et al., 2018). Another notable concept was the Hippocratic Oath, which prohibited doctors from performing an abortion. However, this oath was not accepted by Greeks and Romans, hence the widespread support for pregnancy termination.
Early Christian philosophers and theologians embraced a similar view to that of Greeks and Romans, maintaining that a fetus did not have a soul until 40 days of pregnancy for males and eight days for females. St. Augustine differentiated between the early fetus, which had no soul, and later fetus, which possessed life (as cited Nelson, 2018). While no agreement concerning the exact point at which “the person” was formed, the general view was that abortion in the early stages of pregnancy was not justified as a crime.
Historical analysis suggests that there has been no consensus between ancient and contemporary society toward abortion. Contrary, there has been contravening discourses across religion, medicine, and philosophical views on when life begins, as well as moral jurisprudence concerning abortion (Newbery, 2019). Most of the United States’ laws in the late 19th century restricted abortion except when there was a need to save the mother’s life. However, the rules had no precedent in either primitive or common law experience (Fallon & Fallon, 2019). On the same note, throughout history, women have sort abortion, as well as its legalization, due to several reasons, which were never unanimously criticized by society.
The English traditions were absorbed into a set of common codes of the United States. Following that tradition, women in American colonies, which later constituted the states, had a broad choice to terminate pregnancies. In a few states, such as Connecticut, criminal laws were embraced to prohibit abortion. By the late 19th century, additional states adopted laws criminalizing the practice and increasing penalties for the purported offense (Fallon & Fallon, 2019). This campaign succeeded in banning abortion in most states of America unless performed to preserve the mother’s life. Later, the federal government joined the movement to fight the practice when Congress passed a law making mailing, transporting, or transmitting information on birth and pregnancy a criminal offense.
Federalism in the U.S.A Constitution
Under Britain’s yoke, the thirteen American colonies controlled their court systems, with the states continuing the practice after independence. This Article requires judges in every state to be compelled” in recognizing the federal law supremacy, thus controlling vertical judicial federation (as cited in Newbery, 2019). Consequent proceedings reveal the existence of judicial federalism in the U.S. To understand these implications, the discourse must be taken into perspective, as well as context.
As applied to abortion, federalism translates to the division of power between federal and state governments and whether the federal government has the authority in this particular field. Previously, states governed public policy issues, for instance, family affairs and medical care, through their governing bodies. Either federal courts or legislature does not discredit such positions or the enacted regulations (Balkin, 2017). On the same note, Roe and Casey’s decisions agree with the federalism principles as the court secures the states’ constitutional mandate by offering them the opportunity to regulate abortion (Planned Parenthood v Casey, 1992). Hence, the contention has, at times, arose as a result of family affairs, which are aligned to federalism stipulations.
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The U.S. constitution created only one federal court, namely the U.S. Supreme Court, which had insignificant power and an appeal jurisdiction that encircles all cases under the federal judicial authority (Fallon & Fallon, 2019). Later, Congress was instructed to create more federal courts and mandate them with sections of federal judicial power in the Judiciary Act of 1789. Conversely, the Constitution did not warrant that the federal judicial power to be exercised only by the federal courts. The act granted only slight jurisdictions to federal courts, with cases outside jurisdiction being handled by state courts. Despite the extension of the jurisdiction, today, federal courts cannot wholly or exhaustively practice their judicial power.
Major Abortion Court Cases
In Roe v. Wade, the high court examined the Texas law prohibiting abortion in all aspects unless the mother’s life was at risk. The second case was Doe v. Bolton, who focused on a more moderate Georgia law, which permitted abortion when a woman’s life or health was in danger (Doe et al. V. Bolton., 1972; Balkin, 2017). In 1973, the U.S. Supreme Court, through Roe v. Wande‘s decision, addressed the legality of abortion, asserting that the Constitution, according to the 14th amendment clause, permits a woman the related right (Roe V. Wade, 1973). As a result, the court reinforced its support of Roe’s constitutional core in Planned Parenthood v. Casey (Balkin, 2017). It provided more significant freedom for state governing bodies to regulate how abortions should be performed.
Roe proved to be one of the most important verdicts ever made by the Supreme Court. As a result, the court has been subject to contradicting issues, especially those that require the agreement between the parties involved, informed consent, and waiting for those seeking to terminate pregnancies (Roe V. Wade, 1973). In the case involving Roe, the court ruled that pregnancy termination must be allowed without restrictions in the first trimester, and during the second trimester, regulations related to maternal health can be permitted (Gallagher, Vernaelde, & Casey, 2020). Many critics predicted that Roe would serve to integrate the woman, fetus, and state’s competing interests and resolve the issue. Nevertheless, abortion in America remains one of the most divisive, as well as controversial issues.
Cases in the effort to fight abortion in the American judicial system have also been noted. For instance, Justice Blackmun maintained that during the first three months of pregnancy, risks aligned with abortion are lower than those associated with childbirth, implying the first trimester of pregnancy (Devins, 2018). Blackmun asserted that the state has no significant interest in prohibiting the procedure from saving the mother’s life and protecting her interest. However, the government has to put some safety measures, such as the procedure to be performed by qualified health experts.
Doe v. Bolton (1972) case defined health to include emotional and psychological factors. The outcome was that, because Roe needed a “health “exception to perform an abortion after fetal viability, even the third-trimester abortions could not be appropriately prohibited (Rodimon, 2018). Doe aimed at striking down Georgia abortion law, given outlined the extent of health exception used in Roe case.
Choice-of-law practices can work to determine state legislative competence. Arguably, the state has the legislative capacity to regulate its citizens and their activities, either in the territory or outside the country. Specific early nineteenth-century versions of the law recognized a sovereign authority by governments to control their citizens regardless of their geographical distance. Some courts in the nineteenth century suggested that the choice-of-law principle applied to specific criminal regulations (Newbery, 2019). Conversely, another argument is that the state only has the mandate to punish citizens for acts committed overseas and when the offense was particularly offensive to the country.
Colorado became the first territory in the United States to legalize the termination of pregnancy, given the several circumstances under which the health, as well as the right of the fetus’ mother, could be at risk. Eleven other states by 1970 made a similar change to their abortion laws with four other states, namely Alaska, Hawaii, Washington, and New York, prohibit prohibited abortion during the early stages of pregnancy (Gerdts et al., 2018). However, advocates of abortion rights initiated several court challenges to state laws, most of which they claimed were influenced by ancient perspectives and notions. They argued that constitutional provisions of the right to privacy and equal protection under the law were violated.
Despite the activism and legal implications, states continue to maintain broad powers to regulate abortions. In 2017, nineteen states called for abortion to be performed only in the hospital after a certain pregnancy period (NASEM, 2018). Forty-one states needed a licensed physician to perform the abortion, while forty-three states confined the right to abortion beyond a certain gestational period (only where there is a need to protect the mother’s life and health) (NASEM, 2018). Twenty states outlawed incomplete birth abortions, with most of them having laws regulating the funding of procedure (Rodimon, 2018). Eleven states limited abortion insurance cover; forty-five states authorized institutions to refrain from performing abortions. On the other hand, eighteen states needed counseling to be conducted before abortion the abortion procedure, while twenty-seven states required a waiting period. Thirty-seven states decreed parental involvement for a junior to have an abortion. These state regulations have progressively evolved to legalized but limited circumstances under which abortion can be performed.
While the federal Constitution limits the regulation of abortion by state, there is still substantial power provided under the Tenth Amendment and modern Supreme Court jurisprudence. Since 2015, several states have called for advice to contain information on stopping the execution of medical abortion. In 2019, the governments of Oklahoma, Dakota, Nebraska, and Kentucky passed this psychotherapy requirement, with Arkansas amending an existing law that supported abortion counseling (Berman, 2017). These laws call for medical practitioners to enlighten patients on reversing a medical termination of pregnancy.
In 2019, nine states approved significant steps to protect or increase access to the medical procedure. Governors in five states dismissed abortion restrictions enacted by the state legislature (Berman, 2017). The regulatory agencies physician experts performing the exercise to have the same health and safety qualities as other outpatient facilities. Another requirement was for medical practitioners at abortion facilities to have privileges in the hospital admission. Whole Woman’s Health v.-Hellerstedt dismissed both provisions on the basis that they imposed the burden on a legalized medical procedure.
Supreme Court and other Federal Institutions
The Supreme Court has validated the constitutionality of the incomplete Birth-Abortion Act approved by Congress and signed by former President George W. Bush in 2003. The federalist society aims to progress this debate in the future, analyzing the impact and significance of the decision. In 2019, conventional state legislators were quick to pass an uncommon wave of prohibitions on all abortions. (Zamberlin et al., 2017). Twenty-five new restrictions were signed into law, mostly in the Midwest and South. The U.S.
Supreme Court in 2020 considers a Louisiana law that recommends abortion providers to have admission privileges in local health facilities. This law is similar to the Texas law, which the court overturned in 2016. Hence, the ruling is likely to raise serious questions about the ability to respect settled law as well as the court’s ethics. In efforts to minimize pregnancy termination in other states and courts, state lawmakers, especially in the Northeast and West, as well as Illinois, have taken diverse paths. These lawmakers have enacted policies to protect abortion rights and extend access to contraceptives and sex education.
Thirty-six measures have been established to cover abortion, whereas forty-six policies aimed at decreasing maternal mortality (NASEM, 2018). Additionally, thirteen policies are meant to increase access to contraceptives, while seventeen regulations aim at improving sex education (NASEM, 2018). Regardless of whether a particular case falls under the federal judicial power spelled by Article III of the Constitution, the parties involved are fundamental to the judicial ruling (Gallagher et al., 2020). Hence, federal institutions have a crucial role to play in abortion issues.
First, federal courts seek to discharge the authority of the federal government. They are commissioned to hear cases arising under the U.S laws, Constitution, and those that the federal government is a party. Secondly, federal courts guarantee full control of the national government over foreign affairs. Suppose the court recognized a historical practice identifying state authority to apply criminal laws outside states to citizens. In that case, it could rule that a state may veto its citizens from seeking abortion in other states without examining the strength of the state’s interests in the embargo.
The federal government might as well control abortion directly. Furthermore, suppose states attempted to control abortion outside their borders. In that case, Congress might respond not by banning or legalizing abortion, but by merely leaving the matter to be solved by states and courts. Several concerns about state power to control abortion that could emerge if the courts were to revoke Roe (Devins, 2018). These concerns include whether prohibiting citizens from seeking pregnancy termination contravenes the full faith and credit or due Process Clauses of Article IV of the Constitution on Privileges and Immunities Clause.
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The conflicts include the ethics of aborting a “human being” as outlined by opponents known as “pro-life” versus the dispute by “pro-choice” groups, which states that any woman has a constitutional right to terminate the pregnancy. Besides, a jurisprudential disagreement exists as to whether the Supreme Court via Roe and his followers violated the principles of federalism. Another concern is whether Congress, in providing legislation governing abortion, infringes the Tenth Amendment, which provides powers to the state to handle issues (Gerdts et al., 2018). These interests permeate judicial aspirants and elected officials who are often subject to tests concerning their opinions on pregnancy termination.
Before Roe and throughout American history, states restricted pregnancy termination. In the previous administrations, particularly those in the 19th and 20th centuries, state laws regarding pregnancy termination focused on bringing to book individuals that had already performed or undergone the procedures without concentrating on those with abortion motives. These laws aimed to protect both the mother and the fetus from injury, not to halt them (Nelson, 2018). Despite the almost-universal prohibition of abortion during the early 20th century, the following decades saw several social forces, such as the feminist movement and fight for women’s suffrage, pushing the country towards significant political and sexual freedom.
Fallon and Fallon (2019) argue that if the Supreme Court were to revoke Roe v. Wade, courts might abide in the “abortion umpiring business.” Hence, state and federal performers would control abortion in ways of raising significant constitutional questions during post-Roe. An important question that results from this discourse is the extent to which, in examining these issues, the court would participate in the same type of constitutional analysis in which it has engaged in Roe and its successors (Fallon & Fallon, 2019). In both Roy and Casey, the court assessed abortion regulations’ constitutionality regarding some standards specifically customized to account for state and individual fascination in exercising abortion.
Abortion is a major issue causing a social and legal divide that the American judicial system is struggling to address. Some liberal lawmakers in several states, for example, Arkansas, have implemented more laws to support access to termination of pregnancy services. Others, such as Colorado, only allow abortion in case there is a need to safeguard the life or health of the mother. Although a consensus is yet to be achieved, both federal and state governments have established safety measures to regulate abortion. For instance, the procedure, if need be, must be performed by qualified health personnel along; increasing access to contraceptives and sex education have all been recommended as safety measures to avoid the related risks.
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