Introduction

• A quarter-century after the Roe v. Wade decision made abortion legal in the U.S., the public debate continues to follow the well-worn path between condemnation and choice. Public attitudes do not.
• Where advocates on both sides see absolutes, the public seems to see conflicts and conditions, supporting a woman's right to an abortion if her reasons seem sound and if it's not too late in the pregnancy. Surveys show a solid majority of Americans still support the right to abortion in some form, but the number of those who would impose conditions on that right is growing.
• Medical technology, some experts argue, is making the issue more complex. In some respects technology makes abortion both easier and more acceptable, with advances like the "morning-after pill," the RU-486 "abortion pill" and ultrasound-guided abortions as early as eight days after conception.
• In other respects, technology raises additional moral doubts by making a fetus potentially viable at an earlier stage and providing parents with ultrasound photos from the womb.

Roe v. Wade (1973)

• Court case of 1973 in which the Supreme Court of the United States ruled that a woman has a constitutional right to an abortion during the first six months of pregnancy.

• In the United States, jurisdiction over abortion historically rested with the states rather than with the federal government. Until the second half of the 19th century, most states chose not to restrict abortion. However, by the end of the 19th century, the majority of states had adopted statutes that made it a crime to either perform or obtain an abortion, except to save the life of a pregnant woman.
• Most of these 19th century statutes were still in effect in 1970, when Norma McCorvey, a pregnant woman from Dallas, Texas, first challenged the constitutionality of a Texas abortion law.
• Using the pseudonym "Jane Roe," McCorvey sued Dallas County district attorney Henry Wade to be allowed to have an abortion. The Texas law banned abortions in that state, except when the pregnancy threatened the life of the pregnant woman.
• Roe’s pregnancy did not threaten her life, but as a poor, single woman she did not want to bear a child she could not afford to raise. In addition, she did not have the money to travel to a state where abortions were legal.
• Roe and her attorneys asked the federal district court to declare that the Texas abortion statute violated her rights under the Constitution of the United States. They also asked the court to forbid the district attorney from prosecuting anyone else under the Texas abortion law in the future.
• To the surprise of many legal analysts, a three-judge panel in Texas ruled in favor of Roe, mostly on the grounds that the law violated her constitutional rights to privacy.
• The court ruled that the 9th Amendment and the 14th Amendment of the Constitution guaranteed privacy rights that were broad enough to protect a woman’s choice to have an abortion. However, because the district court refused to forbid future prosecutions for abortion, Roe and her attorneys appealed to the U.S. Supreme Court. Wade also appealed the decision.

The Supreme Court’s Decision

• The Supreme Court heard arguments for Roe v. Wade twice, first in December 1971 and then again in October 1972. Finally, in January 1973 the Court decided 7-2 in favor of Roe.
• Justice Harry A. Blackmun wrote the Court’s majority opinion, the written document that announces the Court’s decision and explains its reasoning. At the outset of his opinion, Blackmun noted "the sensitive and emotional nature of the abortion controversy" but he stressed the need to resolve the issue of abortion based on an interpretation of the Constitution.

Legal Precedent

• Blackmun noted that legislatures in England and the United States had made important distinctions between abortions performed early in a pregnancy and those performed later.
• Blackmun also pointed out that the abortion statutes adopted later in the 19th century were partly designed to protect the life of a pregnant woman because abortion itself was then considered a hazardous medical procedure.

Medical Considerations

· In overturning these statutes, Blackmun noted that by the 1970s the medical dangers posed by pregnancy and childbirth might be greater to women than the dangers from an abortion.

· He cited medical evidence suggesting that "mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than rates for normal childbirth."

· Thus, Blackmun concluded that the state should have a responsibility to ensure that abortions be performed safely, to protect the women patients. However, he argued that there was no medical reason for prohibiting abortions in the early stages of pregnancy.

Right of Privacy

• Blackmun then considered an argument that the state had a responsibility to protect the fetus. He agreed this was so, but stated that this responsibility had to be balanced against the concerns of the pregnant woman. Among those concerns was the woman’s right of privacy.
• Blackmun noted that "the Constitution does not explicitly mention any right of privacy," but he also wrote that since at least 1891 the Supreme Court had "recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."
• He then mentioned many cases in which the Court had upheld the right of personal privacy in marriage, family relationships, contraception, childbirth, child rearing, and education. He also noted the constitutional protections guaranteeing that the government not intrude into the privacy of the home without a legal cause and a warrant.
• Despite these examples of constitutional guarantees of personal privacy, Blackmun pointed out that privacy is not absolute. He stated that in some specific cases, the government could intrude on personal privacy. For example, the Court had previously upheld requirements that children be vaccinated in order to safeguard public health and maintain medical standards.
• Thus, Blackmun rejected the idea that the Constitution protects "an unlimited right to do with one's body as one pleases." All of these considerations led Blackmun to develop compromise guidelines that allowed states to interfere with the privacy rights of a woman only during the later stages of pregnancy.

Trimester Guidelines

• Blackmun argued that as a woman approaches the final stages of her pregnancy, the state has an increasing responsibility to protect both the woman’s health and the life of the fetus. However, he wrote that in the first trimester (stage of pregnancy lasting about three months), the state has no compelling reason to interfere. At this stage a woman has an essentially unrestricted right to choose an abortion.
• Blackmun then cited medical evidence suggesting that in the second trimester, an abortion posed a greater threat to a woman’s health than one performed in the first trimester. Based on this evidence, Blackmun wrote that during the second trimester the state could regulate abortion only to protect the health of a pregnant woman.
• For example, the state could establish certain legal qualifications for people who would be licensed to perform abortions, or the state could establish legal requirements for the facilities where abortions would be performed.
• Finally, Blackmun cited medical evidence suggesting that in the third trimester the fetus is usually considered viable—that is, capable of meaningful life outside the womb.
• Blackmun argued that only at this final stage of pregnancy does the state have a strong enough responsibility to protect the life of the fetus to override the privacy concerns of the woman and to forbid an abortion. Even at this stage, however, a woman has a right to an abortion if the pregnancy threatens her life.
• Although the trimester guidelines offer some protection for the fetus, Blackmun flatly rejected the idea—put forth by the state of Texas—that a fetus was a person protected by the 14th Amendment to the Constitution. (The 14th Amendment says that no state can "deprive any person of life, liberty, or property, without due process of law.")
• Blackmun pointed out that all references to a person in the Constitution assume that the person is already born, rather than a fetus. Indeed, the 14th Amendment defines citizens as "persons born or naturalized in the United States."

Aftermath of the Decison

• Among many groups, the decision intensified divisions over the issue of abortion. For example, the Roman Catholic Church and some other religious groups were horrified by the legalization of abortion, which they had long opposed.
• However, many Protestant churches supported the result, arguing that the autonomy of women was an important concern and that unwanted children were often the victims of abuse and neglect.
• Most Republicans attacked the Court’s ruling, while Democrats generally endorsed the decision. But support for the ruling initially cut across party lines. For example, Texas Republican politician George Bush supported the decision, although later as president of the United States he would strongly oppose abortion.
• Since the Roe decision the Supreme Court has heard more than a dozen cases involving attempts by the states or the national government to restrict abortion. In deciding these cases, the Court has modified its decision in Roe v. Wade by allowing states to regulate abortion in many additional ways.
• However, the Court has always maintained that at least in the first trimester a woman has a right to choose whether or not to continue a pregnancy.
• The Court has allowed some states to impose restrictions that make an abortion difficult to obtain, particularly for low-income women and teenagers. For example, in 1977 the Court allowed states to impose restrictions on the use of Medicaid funds to pay for abortions for poor women.
• The Court has also upheld state laws requiring that pregnant girls under the age of 18 must notify at least one parent before obtaining an abortion.
• Many legal analysts have expected the Supreme Court to reverse the Roe decision in subsequent cases involving abortion. In the 1980s and early 1990s, Presidents Ronald Reagan and George Bush both promised their supporters they would appoint Supreme Court justices who would vote to overturn the Roe v. Wade decision.
• Nevertheless, despite five Supreme Court appointments by these two presidents, the core elements of the Roe decision remain intact.

New restrictions

• Abortion opponents, such as the National Right to Life Committee and the Christian Coalition, have in the past several years focused on banning specific procedures and enacting new conditions -- in part because of the public's support for restrictions.
• President Bush has pledged to sign federal legislation banning a late-term abortion procedure called "partial-birth abortion" by opponents. Thirty-one states have enacted their own bans, with most facing either court challenges or revisions because of court rulings.
• In addition, 31 states require parental consent or notification before a minor has an abortion, 14 states require a waiting period, and 31 states have enacted three or more types of restrictions.
• Abortion-rights groups worry that even if abortion remains legal, it may become harder to get simply because there are fewer doctors and clinics willing to perform the procedure.

Abortion rate declining

• Roughly a quarter of all pregnancies end in abortion, with nearly 1.2 million legal abortions reported to the Centers for Disease Control in 1997. In recent years, the number and rate of abortions has declined.
• The rate peaked in 1980 at 25 abortions per 1,000 women of childbearing age and then declined to 20 per 1,000 in 1997, the most recent year for which statistics are available.
• Experts disagree on the possible causes for the decline, but usually cite two factors: more widespread use of reliable contraceptives, and a greater proportion of the population are women over 30, who get fewer abortions than younger women.

Conclusion: The public divided

• Only a minority of Americans actually hold strict pro-life or pro-choice views, and there is relatively little difference in attitudes between men and women on this issue. In many ways, attitudes seem to have changed little since the Roe decision - the number of Americans who disagree with the Roe decision is 41 percent, exactly where it was in 1973.

• Polls show most Americans are uncomfortable with the idea of abortion. However, more than 80 percent of adults believe abortion should be legal under some circumstances.

• On the other hand, 22 percent said abortion should be legal under any circumstances. Most Americans—61 percent—believe in a compromise position, declaring that abortion should be legal under some circumstances but not others.
• For much of the public, time and circumstance appear to be the important factors. During the first trimester, polls find that two-thirds of Americans say abortion should be legal, but that drops to 13 percent in the third trimester.
• When the woman's health or life is endangered, or when the pregnancy was caused by rape or incest, more than three-quarters of the public favors the option of abortion.
• However, when the reasons for having an abortion are economic (for example if a family cannot afford more children) support for abortion falls to below 50 percent. There is broad support for laws that require waiting periods, or that require parental consent for minors.
• On this issue, Americans often make distinctions between what they would allow others to do and what they would choose themselves. Over half of Americans say they personally consider abortion to be wrong, but most say a woman should have a choice.
• Similarly, a strong majority say abortion should be allowed if a serious birth defect is likely, but only half of Americans say they themselves would choose abortion faced with this situation.

Perspective #1:
Opposing Abortion

· By ushering in an era of abortion on demand, the Supreme Court's Roe decision cheapened human life. The unborn child, which is no less human than its mother, has an inalienable right to life.

· The sanctity of human life is a moral claim that cannot be violated or superceded by other claims. For this reason, abortion cannot be condoned as an individual decision or as a matter of public policy.

· Abortion must be prohibited or at least sharply restricted.

What should be done?

• Seek a Supreme Court decision that overturns Roe and protects the unborn by banning abortion, except when the pregnancy poses a clear threat to the mother's life.
• Protect the life of the unborn by passing a law or constitutional amendment (such as the Human Life Amendment) explicitly recognizing that human life exists from the moment of conception.
• Until abortion is outlawed, pursue measures to restrict it, such as requiring young, pregnant women to seek parental consent before they can get an abortion; requiring women who intend to have an abortion to consult with their husbands; and requiring counseling before the abortion decision to permit doctors to talk about fetal development with pregnant women.
• Ban the late-term procedure called partial-birth abortion, and impose criminal penalties on doctors who practice it.
• Forbid the use of public facilities or public funds to perform abortions.
• Forbid the sale or distribution of drugs, such as RU486 or the "morning after" pill, that offer a non-surgical alternative to abortion.

Arguments for this approach

• Human life begins at conception. Therefore, abortion is murder, which is universally condemned and prohibited. It is not considered a matter of individual moral judgment.
• The right of the unborn to live supercedes any right of a woman to control her own body.
• Sanctioning abortion devalues life. Every premise used to justify the killing of an unborn child could also be used to justify the killing of individuals such as senile elderly persons or those who are psychologically impaired -- who some consider less than a person in the whole sense.
• Since the Roe decision, abortion has become routine: around a quarter of all pregnancies today are terminated by abortions, and it has become a contraceptive of last resort for many women.
• Considering the moral seriousness of the decision, requiring pregnant women who are thinking about abortion to consult with their spouses, parents, doctors, and other counselors is entirely appropriate.
• By allowing a policy of abortion on demand, the law conveys the wrong attitudes about sex, parenthood, and what it means to be morally responsible.
• Abortion on demand has led to this country's high rate of teenage pregnancy, which has contributed to many of our social ills.

Arguments against this approach

• The assertion that life begins at conception is a personal belief, not a biological fact, and it is not universally held. Within the religious community, people differ about the definition of a "person" and when abortion is morally justified.
• A woman has a privacy right to control her own body.
• Under certain circumstances -- when pregnancy results from rape, for example -- abortion is a morally justifiable choice.
• Banning specific late-term abortion procedures forces physicians into the unconscionable position of jeopardizing a patient's health.
• Denying young women the right to abortion would, in many cases, force them to drop out of school and doom their families to poverty.
• If the right to abortion is denied or sharply restricted, we'll return to the situation that existed before Roe. Illegal abortions will be performed by unskilled practitioners in unsanitary circumstances, and the health and safety of millions of women will be jeopardized

Perspective #2:
Supporting Abortion Rights

· The principles on which the Roe v. Wade decision was based -- an individual's freedom of choice, as well as freedom from government intrusion into personal matters -- need to be reaffirmed.

· The fetus is not yet a person and its rights do not outweigh the mother's right to choose. Decisions about such a personal matter as whether to continue a pregnancy must be left to the individual who is most directly involved, the pregnant woman.

What should be done?

• Pass laws guaranteeing a woman's unrestricted right to abortion. Such laws must permit abortion not just when the mother's life or health is threatened, but for any reason a woman considers compelling.
• Provide publicly funded family planning counseling and clinics to permit all women -- regardless of income -- equal access to safe, medically sound abortion services.
• Pass legislative measures that would require HMOs, insurance companies, and group medical practices to include abortion as a regular part of their services.
• Encourage American pharmaceutical firms to distribute RU486, to permit women to carry out safe non-surgical abortions.
• Offer widespread and effective sex education, and easier access to low-cost birth control.
• Block legislation that would require spousal or parental notification as a precondition for getting an abortion; oppose waiting periods; and oppose mandatory counseling designed to discourage all abortions.

Arguments for this approach

• Women have an inalienable right to determine the circumstances of their lives, and government must not intrude into decisions about personal and private matters.
• Forcing a pregnant woman to carry her pregnancy to term, regardless of the circumstances that led to pregnancy, the woman's feelings about becoming a mother, or her ability to take on the burdens of child rearing, is terribly intrusive.
• Efforts to restrict abortion, such as legislative efforts to ban so-called late term "partial birth" abortions, jeopardize women's health, and keep physicians from making decisions that reflect their best medical judgment.
• Contraceptives are not entirely reliable, and for medical or religious reasons many women can't use the most reliable methods. Legal abortion must be available when contraception fails.
• It is inhuman to ban abortion when pregnancy results from rape or incest, or when continuing the pregnancy threatens the woman's health.
• Pregnant women considering an abortion shouldn't be forced to seek the permission of their spouses or parents, or submit to anti-abortion "counseling."
• For all women to have the right to an abortion, it must be available at public expense to women who cannot afford it and do not have insurance.

Arguments against this approach

• Allowing abortion on demand undermines one of the most basic values in a civil society: respect for human life.
• By granting the right to abortion with very few restrictions, the law encourages women to resort to abortion too often, and too casually.
• This perspective reduces abortion to a matter of personal choice and convenience, which ignores the sanctity of human life and the community's compelling interest.
• This position is based on the false assertion that if pregnancy is accidental -- resulting, for example, from contraceptive failure or rape -- women should feel no moral compunction about aborting the fetus. Many moral obligations are not voluntarily assumed.
• Expanding sex education, making contraceptives available to teenagers, and granting the right to abortion have encouraged sexual promiscuity and undermined family life.

Perspective #3:
Respecting Differences

· Laws regarding abortion must reflect a concern for two different values. Because we value the human potential of the unborn, we must try to minimize the number of abortions performed.

· At the same time, public measures must be taken to prevent the tragic dilemma posed by unwanted pregnancy. As members of a pluralistic society, we are obliged to acknowledge that individuals differ about the status of the fetus.

· For this reason, and because outlawing abortion would be impracticable, thus undermining respect for the law, abortion should be permitted early in pregnancy. After that, it should be sharply restricted.

What should be done?

• Pass laws that acknowledge respect for human life as a basic principle.
• Pass laws that permit abortion only during the first trimester. After the first ten to twelve weeks, abortion should be permitted only when medically necessary for the mother's health.
• Expand efforts to inform women about alternatives to abortion, such as adoption.
• Require a one-week waiting period -- except in medical emergencies -- to encourage a carefully considered decision.
• Significantly expand efforts to prevent unintended pregnancy, including programs for sex education and the provision of contraceptives to sexually active women.
• Pass laws to ensure that abortions for low-income women are provided at government expense, and that medical facilities performing abortions are licensed to meet high standards of care.
• Prevent harassment or intimidation intended to dissuade women from abortion who have a right to it.

Arguments for this approach

• Public policy often balances several legitimate interests. A prudent law on abortion would seek to minimize the number of abortions performed, while respecting differenct views about fetal life.
• There is nothing contradictory about laws that combine compassion for pregnant women with concern for the fetus, a concern that increases as pregnancy continues.
• In a pluralist society, most matters of personal morality -- particularly when there is no consensus about them -- should be kept out of the public realm.
• When abortion takes place early in the pregnancy, the status of the fetus is morally ambiguous, and for that reason discretion ought to be left to the woman.
• While a fetus is obviously not a complete human being, the potentiality of human life is there -- increasingly so as the pregnancy continues. So the right to abortion cannot be unconditional, and the decision cannot be left entirely to the pregnant woman.
• Some nations, France included, have settled the issue by allowing abortion up to the tenth week, but thereafter permitting only abortions that are medically necessary.

Arguments against this approach

• Agreeing to such an approach would mean permitting abortion on demand during the phase of pregnancy -- the first ten weeks -- in which most abortions take place. Therefore, it would do little to reduce the number of abortions.
• This amounts to a moral middle ground, which is unacceptable both to those who are convinced that human life begins at conception, and to those who are convinced that a woman's right to choose must take precedence.
• If there is no consensus about the status of a fetus, why should we go to such lengths to restrict abortion after the first ten weeks?
• This kind of abortion policy would create a legal straitjacket: When an unwed, pregnant 17-year old discovers in the thirteenth week that she is pregnant, are we prepared to say she must give birth, regardless of her ability to raise the child?
• This denies the central principle affirmed in Roe, that as a society we affirm individual privacy as well as the right to choose. Because it infringes on a woman's right to privacy, this approach would be a giant step backward.