The Right to Abortion – The Most Controversial of all Rights

Over the years, the scope of the right to privacy has significantly increased to incorporate many contentious aspects. One such controversial issue is abortion. In 1976, the US Supreme Court extended the right to privacy to the realm of the right to abortion in Roe v. Wade. However, up to date, abortion is a highly debated and controversial topic due to its highly sensitive and emotional nature. This stems from the fact that a robust spiritual infrastructure undergirds America. However, in the light of the nation’s Constitutional heritage and principles, the right to an abortion is underpinned by a firm constitutional basis.

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History of the Abortion Controversy

            Analysis of legal battles that foreshadowed the Supreme Court ruling to extend the right to privacy to incorporate the right to abortion leads to the landmark case of Griswold v. Connecticut (1965). In this case, the appellants, the Executive Director of Planned Parenthood League of Connecticut, and its Medical Director (a licensed physician) were convicted as accessories for giving married persons medical advice and information regarding preventing conception. Following an examination, the two prescribed a contraceptive device or material for the wife’s use. Notably, a Connecticut statute made it a crime for any person to use any drug or article or device to prevent conception (Wade, 2017).

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The appellants argued that the accessory statute, as applied to their case, violated the Fourteenth Amendment. The Court ruled that the Connecticut statute forbidding the use of contraceptives infringed the right of marital privacy, which is within the purview of the specific guarantees of the Bill of Rights. The Court held that a right to marital privacy existed in the significantly ignored Ninth Amendment. Thus, the judicial system made the right to marital privacy applicable to the states through the Fourteenth Amendment (Wade, 2017). Once the decisional marital right to prevent the conception of children was established, it was just a matter of time before the right to abortion was propounded.    

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Roe v. Wade and the Right to Abortion

After the Griswold v. Connecticut came a rapid procession of cases challenging state abortion laws, which led to the landmark case, Roe v. Wade (1973). By the early 1970s, there were numerous confusing and inconsistent rulings by both state and federal court rulings regarding the right to abortion. As a result, the Supreme Court decided to review the issue to provide clarification. The Supreme Court agreed to resolve the issue based on a constitutional basis and free of emotion and predilection. The Court used ‘Jane Roe’ as a fictional name to protect the plaintiff’s identity, who instituted federal action against Henry Wade, the district attorney of Dallas County, Texas. A thorough analysis of the issue by the Court revealed that until relatively recent times, women enjoyed a substantially broader right to terminate pregnancy than most states provided by the time (Goldenberg, 2017). The Court, therefore, established the right to privacy was incorporated within the ever-growing right to privacy.

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It is worth noting that the concept of the right to privacy is not expressly incorporated in the Constitution. It is through judicial interpretations, starting at the end of the 19th century, that the right emerged. The right is underpinned by the philosophy asserting that every individual should lead his/her life as free from government intrusion as possible (Goldenberg, 2017). However, merely establishing that the right of privacy exists did not provide sufficient ground for the Court to extend it to the realm of abortion. Interpretation of the Fourteenth Amendment, specifically the due process clause’s protective provision, convinced the Court criminalizing abortion is unconstitutional. The Court held that criminalizing abortion violates a woman’s constitutional right of privacy, implicit in the liberty guarantee entailed in the protective provision of the due process clause of the Fourteenth Amendment (Wade, 2017). The ruling extended the right to privacy to incorporate the right to abortion.

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Religious Perspective of Right to Abortion

Before delving into the constitutional analysis of the Supreme Court’s decision to extend the right to privacy, it is crucial to explore the religious perspective regarding abortion, particularly the Christian worldview. America was founded on a robust spiritual infrastructure, which extends to inform morality and ethics, which were key building blocks of the US Constitution. According to the Christian worldview, abortion is a sin. Christians believe that only God reserves the right to give and take life. Notably, Christians equate abortion to murder, which is prohibited in the Ten Commandments (Exodus 20:13). As per the Christian perspective, an unborn child is a human being who reserves the right to live as per God’s plan. Terminating pregnancy, therefore, goes against God’s plan. In Jeremiah 1:5 (KJV), the Bible states, “Before I formed you in the womb I knew you, before you were born I sanctified you; I ordained you a prophet to the nations.”  The verse demonstrates that God knows every person even before they are conceived in their mother’s womb, as they are a part of His grand plan of life. Hence, based on this religious perspective, the Supreme Court’s decision to extend the right to privacy to incorporate the right to abortion is wrong since abortion is a sin.

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Constitutional Perspective of the Right to Abortion

            The three considerations necessary to determine the constitutionality of the right to abortion include (1) whether there exists a relationship between abortion and the right to privacy, (2) adherence to due process, and (3) the state’s interest in protecting fetus life. Regarding the relationship between abortion and the right to privacy, the concept emphasizes that individuals should lead their life as free from government intrusion as possible. The provision regarding equal protection as stipulated by the Fourteenth Amendment impliedly stipulates the right of privacy within the family unit. Notably, this right protects people, not practices (Nerney, 2020). The intrusion of a family unit by the government to dictate whether a woman should keep or terminate their fetus is a violation of the right of privacy. Besides, the right to privacy already incorporated the right to marriage, procreation, and contraceptive use; criminalizing abortion would be a constitutional contradiction (Blagojević & Tucak, 2020). Therefore, extending the right to privacy to incorporate abortion is constitutional since the Fourteenth Amendment seeks to protect people not practices.

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            The second and third concerns are significantly related. Concerning the second concern, due process, the Fourteenth Amendment states that if a state attempts to deprive an individual of life, liberty, or pursuit of happiness, it must do so based on due process. Hence, for the states to deny women the freedom to terminate pregnancies, it must base the interest on due process (Ziegler, 2020). Those opposing the right to abortion argue that the state has an absolute interest in protecting a person’s life. The assertion leads to the second concern, whether the said interest extends to unborn persons. It is necessary to define when life begins to answer objectively and rationally tackle the question. After thorough analysis and in-depth consideration, the Court agreed that life begins at the stage of viability. Having established this premise, the state’s interest involves protecting viable, not potential life (Nerney, 2020). Thus, the state has no compelling interest in protecting fetal development before the viability point. Besides, the Constitution’s Framers did not intend to protect the interests of the unborn since a fetus is not a person within the purview of the Fourteenth Amendment (Ziegler, 2020). Therefore, the decision by the Supreme Court is constitutional.

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            To sum up, the case of Roe v. Wade served as a landmark as it facilitated the extension of the right to privacy to incorporate the right to abortion. Whereas the decision is still largely contested by many Americans due to their religious background, constitutional analysis of the ruling demonstrates that the decision was right. The decision is well based on the purview of the Fourteenth Amendment. Thus, although the Christian worldview perceives the act as a sin and, as such, unlawful, the Supreme Court’s decision was robustly based on the Constitution.

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