Abortion: One Of The Most Controversial Topics Today

Abortion: One of the Most Controversial Topics Today

In the early American Colonies, English Common Law was adopted by the United States, which declared abortion forbidden. The procedure was ruled a misdemeanor if performed before quickening, which meant "feeling life," and a felony if performed after quickening. In the early 1800s, it was discovered that life begins at conception and not when the mother "feels life." Eighty-five percent of the states had laws that made all abortions a felony. Between the 1800s and today, many arguments have taken place regarding when life begins for a fetus and to what extent the mother has a right to terminate her pregnancy (Fast Facts: History of the U.S. Abortion Laws, 2003). There have been numerous attempts to change the current laws and/or add to them and the majority of these attempts have failed. The most famous law of them all resulted from the case of Roe v. Wade , is still in effect today and forms the basis for abortion laws and arguments.

Important Court Cases

One of the most important dates in abortion history is January 22, 1973. On this date, the Supreme Court struck down all state abortion laws and legalized abortion in all 50 states for the full nine months of pregnancy. A mother's right to abortion is known as the outcome of Roe v. Wade and falls under a woman's right to privacy. More specifically, the court ruled that the government could restrict abortion access after the first trimester with laws intended to protect the woman's health. Also, late-term abortions need the approval of a licensed physician to judge the procedure necessary to protect the mother's health (Roe v. Wade: The 1973 Supreme Court Decision on State Abortion Laws, 1973) .

According to an article written by Michael W. McConnell, "the reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously, even to many scholars who heartily support the outcome of the case (p. 136)." The first reasoning behind the decision is based on the "right of privacy" and that it is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. But the right of privacy is nowhere mentioned in the Constitution, as many would agree. Connell says that judges have found at least the roots of that right in the First Amendment, Ninth Amendment, and the concept of guaranteed liberty in the first section of the Fourteenth Amendment.

The second reasoning behind the Roe v. Wade decision is in relation to when life actually begins. The court had ruled "when those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciaryÐ'...is not in a position to speculate as to the answer." Connell feels that we are left with a completely circular argument, whereas the Court has not officially stated when life begins. Still, there are people who honestly disagree about the question of when life begins. If no one actually knows when life begins, the courts can not form a basis for saying the legislature's answer is wrong (McConnell, 1998).

In 1976, the case of Planned Parenthood v. Danforth declared that spousal and parental consent is unconstitutional (Fast Facts: History of the U.S. Abortion Laws, 2003). On the other hand, in 1992 during the case of Planned Parenthood of Southeastern Pennsylvania v. Casey , the court ruled that Pennsylvania could require a 24-hour waiting period before an abortion is performed, a woman must give her informed consent to the abortion, and a parent or guardian must be notified before an abortion on a woman who has not reached the age of 18. The court also struck down Pennsylvania law that required spousal notification and declared it unconstitutional.

The case of Webster v. Reproductive Health Services (1989) declared Missouri law, written in June 1986, was in fact constitutional. The law stated that human life began at conception, Missouri state property could not be used to conduct abortions, and "fetal viability assessment" could be required before late term abortions are performed. It also declared that "unborn children have protectable interests in life, health, and well-being." Unborn children are to be provided with the same rights enjoyed by other persons under this Missouri Act (Webster v. Reproductive Health Services, 1989). Rights granted to an unborn child is one of the strongest arguments among those who are pro-life.

"A Defense of Abortion" by Judith Jarvis Thomson

In 1971, Judith Jarvis Thomson, a philosopher, wrote a unique and well-known essay about her views on abortion. Unlike most people who are pro-choice advocates for a mother's rights, Thomson agrees that conception is the start of a life. But she states this is not the issue and instead she asks whether killing this life "unjustly" is morally wrong or not (Thomson, 1971).

Thomson uses a well-known Violinist analogy to express the rights of a mother with respect to an unwanted pregnancy, or rape. Imagine you had awoken in a hospital, not knowing how you got there, and found yourself attached to a violinist who will die if he is unplugged from your body. You are told that this violinist has a kidney disease that requires the use of someone else's kidneys to extract toxins from his blood for the next 9 months until he has recovered from this ailment. Thomson admits that you were kidnapped and unfairly attached to this violinist, but if you disconnect yourself from the violinist he will die.

According to Thomson, it is morally permissible to detach yourself from the violinist. She goes on to say that the right to life does not give the right to use someone else's body to stay alive. Because the violinist is a person, he has the right to life, but this does not imply the right to use your body in order to stay alive. If he had a right to use your body to stay alive, then that right to live could outweigh your right to determine what happens to your body. She adds that if you were to stay attached to the violinist, you would be going above and beyond your moral obligations.

In an analogy to explain pregnancies in which the mother's life is at risk, Thomson asks the reader to consider a story about a boy and his mother who live in a tiny house. The boy is growing rapidly in this tiny house, but his life is not at risk, and the mother will eventually be crushed to death if she does not protect herself. The house belongs to the mother, and therefore symbolizes her body. Thomson understands if a third party refused to choose which life outweighs the other, but she adds