Roe Vs Wade 1973 Legal Case Ethical Analysis

Introduction

A landmark ruling on the issue of abortion was made by the United States Supreme Court in 1973. This decision was made in the case of Roe vs. Wade where a woman’s right to make her own medical decisions was recognized by the Supreme Court as being covered by the constitution under the provisions of ‘right to privacy’. The Supreme Court acknowledged the decision by a woman to have an abortion as a right included in an individual’s ‘right to privacy’. Be that as it may, and despite this strong decision by the Supreme Court, the Court also ruled that State laws put in place to regulate the matter of abortion if properly checked can be constitutional and significant enough to be applied within the State. The negotiating power that anti-abortion group wield and which they use to constantly urge Congress and State legislators to impose regulations on the practices of abortion is thus derived from this lee-way provided by the Supreme Court decision. Supporters of abortion rights on the other hand feel that this room for negotiation provided for by the Supreme Court’s decision, good as it may be, has often been used to undercut the reproductive freedom of women by the anti-abortion camp who are always encouraging the imposition of regulations against abortion practices.

The reason I chose the Roe v. Wade case for this research and ethical analysis is because I have always wondered about the ethics of human embryo destruction and whether or not women and especially teenage girls should have access to abortion care. As I began my research I chanced upon an article by Charles Clark within which staggering statistics on the issue of abortion in America are neatly presented. According to Clark, in America, every single year sees more than a million girls aged 20 years and below become pregnant. In my opinion, this number is large enough and provides explicit evidence to the necessity of abortion care and the need for improved access of this type of care for young women who find themselves in the predicament that is unplanned pregnancies. This research paper explores the Roe vs. Wade case and its central matter of Abortion and its links to the closely related issues of Birth Control and Embryonic Stem Cell Research in the United States of America.

Overview of the 1973 Roe vs. Wade Case

As a landmark case the Roe vs. Wade case has enormous historical and legal significance since it defined new legal standards, set new legal precedence and instigated changes in case laws. The Roe vs. Wade case like many other landmark cases concerns itself with individual liberties and individual rights. This particular case revolves around the issue of a woman dubbed ‘Jane Roe’ whose actual name was Norma McCorvey; a single woman in the State of Texas who was pregnant with her third child and had made a personal decision not to go through with the pregnancy. However, as she sought abortion services, they were denied to her because under the Texas law, it was illegal to obtain abortion services. It was during the ruling of this case that the Supreme Court decided that a person’s ‘right to privacy’ extended to include the right of a woman to choose to carry a pregnancy to term or to choose to terminate the pregnancy through abortion. According to Wagner, the court ruled in favor of Roe 7-2 strongly backing this decision with the assertion that the ‘right to privacy’ is constitutionally implied in the matter of a woman’s choice to have an abortion carried out.

According to Greenhouse & Siegel, elective abortion was illegal and considered a criminal act in all the States of America. Elective abortion refers to when a pregnant woman seeks abortion services in the absence of a medical threat or danger to her life. Based on this landmark Supreme Court ruling, the Texas law that denied women their right to choose was found to be unconstitutional and as such was struck down by the Court. In the judges’ opinion, however, a set of guidelines were provided to give guidance to regulations developed by the State as relates to abortion. These guidelines expressly gave lee-way to impose restrictions on the choice to abort that can only be applied during or in the later stages of pregnancy. Out of all the landmark cases rulings made by the Supreme Court this decision remains to be one of the most controversial rulings ever made, despite the opinion and its allowance for modifications that guide state regulations. The historical significance of this ruling is evident in the fact that abortion is legal in all the 50 states of America, allowing women to exercise their right of choice between keeping a pregnancy and getting an abortion.

Roe vs. Wade Case (1973) and Griswold vs. Connecticut Case (1965)

It is important to note that the Roe vs. Wade ruling was not made in a vacuum or without reference to prior related rulings. As a matter of fact, to support their decision to strike down all laws that barred abortion in the United States, a previous case: Griswold vs. Connecticut was looked into and provided precedence and a constitutional basis for the interpretation of the implied ‘right to privacy’. According to Griswold et aL. v. Connecticut, under the Comstock law of 1879 in Connecticut, the use of drugs, medicinal instrument, or medicinal article in the prevention of conception was prohibited. This law was found to be in contravention of the ‘right to privacy’, which denotes the constitutional right individuals have to be accorded protection from intrusion by government. In the Griswold vs. Connecticut case, the Supreme Court viewed this ban on the use of contraceptives as a violation to the right individuals have to marital privacy. Based on this view the Comstock law of 1879 was thus invalidated in a 7-2 vote by the Supreme Court so as to ensure the restoration of privacy as far as intimate practices are concerned. Following this strand of thought the Supreme Court found that the decision to terminate a pregnancy within the first trimester was well covered by the ‘right to privacy’ and thus recognized this right in their landmark ruling of the Roe vs. Wade case.

The Right to Privacy

As earlier mentioned, the concept of the ‘right to privacy’ is designed to limit government intrusion in the lives and decisions of individuals, and derives its legitimacy from the Bill of Rights as outlined in the Constitution. As is, the Bill of Rights captures within it the spirit of the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Ninth Amendment, and the Fourteenth Amendment all of which hinge on the freedom of expression, individual liberties, citizenship rights, and matters of privacy. This reality points to the fundamental principles of justice and liberty that would be violated when the fundamental nature of the right to privacy is undermined or denied.

That said it is vital to note that although the constitution does not make a mention of the right to marital privacy or the right to privacy expressly, these rights are sufficiently implied and thus provided for. As noted by Wagner, Justice Arthur Goldberg recognized that the expansive nature of the Bills of Rights its inability to exhaust all the rights contained by the people is fairly acknowledged by the provisions of the Ninth Amendment. It is with this understanding that the Supreme Court is able to derive the right to privacy without attaching it explicitly to a particular amendment in the constitution. Another way to look at how the Supreme Court was able to derive the right to privacy is by following the interpretation by Justice Byron who views the fundamental right to marital privacy as being encompassed within the Due Process Clause, which is fiercely protected by the Fourteenth Amendment. The right to terminate a pregnancy without government interference is thus given to women by the constitution but only within the first trimester. In the second and third trimester, however, the Supreme Court found and acknowledged the heightened interest by the States to impose regulations on abortion practices.

Teenage Abortion

The controversy surrounding teenage abortion has widened over the last decade especially as States enact and enforce laws that require young women seeking abortion care to notify or get consent from at least one of their parents before initiating abortion procedures. 39 states in the United States, which constitute majority States, had enforced such laws and regulations as of January 2014, requiring consent or notification as regards abortion care for young women. Politicians, especially those who have taken a stand for abortion rights have also fuelled the embers in the teenage abortion debate by supporting the requirement of parental consent or notification laws, which is seen by their supporters as losing their footing.

To the abortion rights camp, this move has been interpreted as betrayal and has clearly served as fuel to the anti-abortion activists’ camp. Reacting to these laws and regulations, activists that hold positions in support of abortion argue that instead of accomplishing a well-meaning agenda they not only violate the rights of minors but also threaten adolescent health. It is on these grounds that activists and supporters of abortion rights challenge and repeal these laws and regulations aimed at placing checks and balances on health care decisions that relate to abortion. Compared to 60% of Americans, there are about 70% of Americans who wish to keep the right to abortion legal in the United States, be that as it may, it has been 45 years since the Supreme Court legalized abortion and yet more than 130 laws have been enacted to restrict abortion between the years 2010 and 2012 only. From my standpoint this is a compelling indication that the perpetual tag of war surrounding the issue of abortion has no end date at least not anywhere in the near future.

According to the National Center for Health Statistics, every year in the United States more than 800,000 legal abortions are carried out. Although this rate indicates a decline in abortion rate since 1990, for minors under the age of 15, abortion rates remain highest. In spite of the infinite debate on abortion, there is sufficient evidence indicating that of the young women seeking abortion care, most of them actually seek counsel from their parents. That said, of the young women seeking abortion care and not in a position to involve their parents it is often because they are faced with perilous situations back at home. According to Clark 50% pregnant teenagers face violence under the hands of their parents while 30% of pregnant teenagers refuse to inform their parents about their pregnancies out of fear of being kicked out of their family home or fear of violence. Applying logic to the situation of a pregnant teenage girl it becomes clear that it is highly unlikely for a young woman to have at her disposal the time from school, finances to cater for incidental expenses and the means of transport involved to access abortion care, which often involves travelling interstate. This further indicates the unclear impact on birth rates and abortion rates that laws enacted to erect barriers in accessing abortion care for teenage girls has apart from endangering the safety and health of young women. This is more so, if the young woman is reluctant to get help from her parents and if she lives in a rural area.

Read also Should Abortion be Made Illegal?

Abortion and the Crossroads of Religion and Politics

To many religious groups abortion or the destruction of human embryos is considered the equivalent of homicide. This argument, held strongly by Christian groups such as the Catholic Church is based on the notion that life begins at conception and as such human embryos are viewed as human beings implying that they should have the right to life from the day their existence begins. The right to life constitutes the ideas that human beings and in this case human embryos deserve respect and the preservation of their dignity because life is sacred and inviolable. Despite the absence of a central authority on ethical matters in Buddhism, abortion under certain circumstances such as danger to the mother or the child has been favored by the Dalai Lama. Be that as it may, the general Buddhist view of abortion is that it is synonymous with murder. Most groups that subscribe to Protestant Christianity are not in favor of abortion but there are more-liberal denominations that are for abortion. Hinduism, Islam and Judaism as religious groups are also against abortion but from the 1960s the Jewish community has been known to have debates on the permissibility of abortion. These debates stem in part from the Jewish belief that a human embryo only becomes human after about 40 days after conception. While some agnostics, atheists and other people who are not affiliated to religious groups are pro-abortion, there are an equally large number of them who equate abortion to murder and are thus pro-life.

One cannot fully appreciate the pro-life side of the abortion debate without exploring the issue of fetal personhood that seems to be the central premise in nearly all their arguments, decisions on abortion restrictions, and political activism. According to Wenz who argues for abortion rights as a matter of religious freedom, how one defines fetal personhood is fully influenced by their religious beliefs. This understanding shines a significant amount of light on why the Roe vs. Wade ruling relied heavily on the Fourteenth Amendment as opposed to relying on the provisions of the First Amendment to back their decision. The Fourteenth amendment provides for the right to privacy under the Due Process Clause, whereas under the First Amendment abortion rights would be viewed as a matter of religious freedom. If the Supreme Court’s decision would have been tied wholly to the provisions of the First Amendment there would have been questions about which is the most preferred concept of the beginning of life. If the government were then to endorse any specific concept, it would amount to favoritism of certain religious or non-religious viewpoints over those of others and thus be in violation of the Establishment Clause.

The position held on the morality of abortion is not a unified one in the United States. The concept of religious freedom or liberty on the other hand has become synonymous with intolerance, alienation, and discrimination, which further divides people based on their religious views. The irony on this matter being, women’s reproductive rights and religious liberty are two kinds of freedom that should not be mutually exclusive but are now pitched against each other, where one sees religious liberty another sees a violation of women’s rights. It is because of this reality that it would take a big paradigm shift before there can be a mainstream reproductive-rights movement that can make valid arguments based on the First Amendment provisions for freedom of religion. In the efforts to address societal problems that require inclusivity, religion as experienced in current times is not the best approach to use because it has become more off-putting and exclusionary. In the issue of women’s rights, the question remains whether by accepting a religious freedom is tantamount to undermining other rights given lawfully in the United States.

From Anti-abortion Campaigns to Anti-Embryonic Stem Cell Research Campaigns

The issue of embryonic stem cell research involves obtaining three to five-day-old embryos, which are special cell from human embryos, to be used in the search of cures for various chronic diseases. Embryonic stem cells have been found to be pluripotent which refers to the unique ability to develop into any of the 220 cell types found in the human body. This is to mean that embryonic stem cells are capable of differentiating into all the tissues and organs found in human beings. After the embryonic stem cells have been developed into specific unipotent cells they can then be grown and cultured to be used as treatment. Research based on embryonic stem cells has provided the world of medicine with a glimmer of hope in the form of potential cures being found for chronic and debilitating conditions such as Alzheimer’s disease, blindness, juvenile diabetes, spinal cord injuries and Parkinson’s disease. Besides the discovery of potential cures to illnesses, breakthroughs in the research indicate a positive inclination towards a deeper understanding of the causes of many conditions that afflict humans.

Embryonic stem cell research is surrounded by a significant moral and political debate that has made it a top political agenda both at the federal and state levels. Similar to the issue of abortion, embryonic stem cell research evokes the same moral issues from its opponents most of whom have a strong background in the anti-abortion campaigns. This is because most of them were remobilized and regrouped to assert that embryonic stem cell research constituted the destruction of human life after abortion was legalized by the Roe vs. Wade ruling in 1973. According to those opposed to embryonic stem cell research, interfering with human embryos is both immoral and unethical, arguing that scientists can and should find less-controversial methods of carrying out their research. The proponents of embryonic stem cell research on the other hand insist that unlike abortion, which destroys millions of human embryos, this research only destroys a few hundred embryos and in the absence of a better alternative, the research offers the best chance for medical breakthroughs that will save millions of lives. This debate on embryonic stem cell research places the hot topic of the destruction of potential life at the center of American politics just as much as abortion does.

Federal laws that restrict research concerning embryonic stem cells are non-existent in the United States. Some States such as Arkansas, North Dakota, Louisiana, South Dakota, Michigan and Indiana, however, have laws that prohibit the creation or destruction of human embryos in medical research. The issue of Federal funding for embryonic stem cell research is a hotly contested one, with democratic politicians greatly favoring the support of the research with federal funding while the republican politicians opposing this move. To arrive at acceptable middle-ground, non-profits, private universities, States and corporate laboratories are allowed by the U.S. government to pursue this research in States where it is not restricted for as long as no federal funding is used. If however any federal funding is to go towards embryonic stem cell research then the embryos to be used must be marked for disposal by fertility clinics.

Ethical Issues Surrounding the Legalization of Abortion

As far as Planned Parenthood is concerned, women’s ability to control their reproductive lives has facilitated their ability to participate equally not only in the social life but also in the economic life of the nation. From an ethical point of view, the law ensures that one’s health needs are not undermined by another’s religious beliefs. Be that as it may, there are some quarters that strongly feel that the Roe vs. Wade ruling was based on erroneous premises and that its subsequent effects over the past four decades reflects the unethical nature of the decision to legalize abortion.

According to the president of the Ethics & Public Policy Center Ed Whelan, Roe vs. Wade needs to be re-examined because it is wrong patently and fundamentally hostile to core precepts of both the American citizenship and government. In his sharp criticism of the Roe vs. Wade ruling by the Supreme Court, Whelan observes that the Court’s actions were unconstitutional because they were merely an act of agrression against the American people and the political branches. This observation is based on the fact that the ruling by the Supreme Court in the Case of Roe vs. Wade denies the people of America the opportunity to work together to revise and establish policies that govern abortion practices in the States through a peaceful process characterized by vigorous persuasion.

This asssertion interprets the outcome of the case as an unwarranted imposition of a radical regime of unrestricted abortion on all Americans. Whelans’s scathing remarks are a reflection of his and others’ frustrations regarding the neverending litigation where even the modest of regulations concerning abortion by state legislators are met with opposition from pro-abortion extremists. Feeling that those that oppose the re-examination of Roe vs. Wade do under the misguided, exaggerated and distorted fear of the consequences of a reversed ruling. By viewing the outcome of Roe vs. Wade as illegitimate, Whelan proposes that the power to determine policies that govern abortion should be restored back to the American people within their respective States.

As far as a pregnant woman’s right to privacy and by extension the right to choose whether to carry a pregnancy to term or proceed with an abortion to terminate the pregnancy, there appears to be a conflict between the fetus’s right to life and the woman’s right to privacy. The question being who between the two; mother and fetus, takes precedence? To give this issue some context and perspective, there are other instances in reproductive health that showcase the conflict between woman and unborn fetus such as in the case of substance abuse and when a mother refuses to follow health advice. This conflict between mother and fetus is not necessarily unique to abortion but occurs every time harm may be caused to a fetus due to a woman’s behavior. The fact that the Supreme Court opted for a neutral position regarding the issue of when life begins allowed room from which numerous debates are sparked. There are those that believe that life starts at conception while others hold that personhood begins once a fetus is viable or when it can live outside of the uterus. In the absence of an absolute, scientific and definitive way to ascertain the beginning of life, this controversial issue will continue to plague the abortion debate.

Conclusion

According to Jost, in the entirety of a woman’s life, at least one out of three women will have an abortion. In conclusion, placing restrictions on access to abortion care does not automatically reduce the need for abortion, to the contrary, women are more likely to seek out potentially risky and illegal methods to abort, which consequently become more popular. Irrespective of legality, young women should have access to abortion care whenever they need it. The constitutional ‘right to privacy’ that covers the right for a woman to make her own medical decision; be it her decision to seek abortion care, should receive protection from political interference at all costs. The legalization of abortion in the United States grants women the right to choose and has achieved a great feat both for women’s rights and reproductive health rights. Irrespective of these facts critics of the Roe vs. Wade outcome insist that the Supreme Court bullied its way into making the decision and ended up disempowering the American people by taking away their authority to make abortion related policies within their home States.

Ultimately, and despite the divisive and contentious nature of the abortion issue, the legalization of abortion in the United States as an outcome of the Roe vs. Wade case standardized a woman’s express right to terminate a pregnancy within the first trimester without interference by the State. Recognizing the need for regulation on the matter, the Supreme Court provided an allowance for State legislators to impose restrictions as deemed fit during the second and third trimester of woman’s pregnancy.

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