Abortion and the Transition of Morality in Modern Society: Contemporary Ethical Considerations
The Paul L. Boley Law Library at Lewis and Clark University in Portland, Oregon is an excellent place to investigate the legal history of abortion. Oregon is a unique microcosm of progressive trends in a backdrop of conservative, libertarian values. The Oregon Supreme Court has a history of arguments against legislative restriction of abortion because those restrictions in essence “sentence women to child-bearing against their will” and thusly constitutes discrimination of women. (Tweedt, 1992) When comparing the case law in Oregon to organizations affiliated with the pro-life movement, details about the ethical considerations of such a movement surface.
Conversely, comparing the landmark Supreme Court decision Roe vs. Wade with elements of philosophy gleaned from the American Medical Association website, patterns of a shift in the American morality paradigm begin to emerge when taken in the context of the recent conservative political landscape. In simple terms, abortion is an indicator of the complex relationship that citizens of the United States have with their feelings of patriotism juxtaposed with their moral underpinnings.
Abortion is defined by Merriam Webster dictionary as: “the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.” Statistically, the incidence of abortion is a sobering reality in the United States, yet the trend is declining.
Almost half of pregnancies among American women are unintended, and 40 percent of these are ended in abortion. Twenty-two percent of all pregnancies except miscarriages are terminated by abortion. Each year, two percent of women aged 15-44 have an abortion, and for 47 percent of those women, it will not be their first. Fifty percent of women who will have abortions in the United States are under the age of 25. About 60 percent of all abortions are obtained by women who have one or more children.
The occurrence of abortion with women age 15-44 is declining, at about two percent every four years since 1997. From 1973 until 2005, 45 million legal abortions occurred.
The reason most women give for having an abortion has to do with their concern over responsibility to other people. Three fourths say that they cannot afford a child; three-fourths say that having a baby would interfere with work or school; and half say that they do not want to be a single parent or are having problems with their husband or partner. (Guttmacher Institute, 2008)
Most women who get abortions report using a contraceptive the month that they became pregnant. Over three-fourths of them report inconsistent use of contraceptive method as the reason for pregnancy. Lack of contraception as the reason for pregnancy is highest among poor, black, Hispanic, or less educated. (Jones, Darroch, & Henshaw, 2002)
Up until 1973, States had enacted their own laws, outlawing abortion. Starting after the Civil War, states began to render abortion a criminal act punishable with severe penalties. This evolution of abortion criminality could be explained for several reasons, certainly not the least of which was the fact that early medical technology had advanced due to the staggering casualty rates of the war. Doctors became more plentiful, having organized the American Medical Association in 1847, and the profession began to grow as an industry post-war, alongside the manufacture of drugs. (AMA, 2008)
Historically midwives had performed most birth and obstetric procedures before the Civil War, and doctors began to overshadow the midwife’s role in women’s lives. This wave of legality coincided (possibly not by accident) with the “first wave” of modern feminism in America. Suffrage was the heart of the first wave, and the opportunity to vote empowered women to change the status quo.
As the feminist movement continued to evolve into the first decade of the twentieth century, abortion law became even more prevalent across the nation, almost as if the trend were a government response to American women’s increasing desire for individual freedom.
The Nineteenth Amendment to the United States Constitution was ratified on August 18, 1920, allowing women to vote in the November 1920 election. However, abortion criminal statutes continued to evolve. In order to fully understand the legal precedent for abortion criminality, it is necessary to explore the evolution of abortion law in the United States, because it is the legal history that much of the effort to legalize abortion has been based. Had there not been case law to support a legal appeal, it is doubtful that efforts culminating in Roe v. Wade would have been successful.
The laws of the United States were based on English common law where the concept of fetal “quickening,” the point at which there is detectable movement of the fetus established the existence of a person. Aborting a “quickened” fetus, i.e. a person, was tantamount to murder, thereby creating a crime. Unborn embryos that had not “quickened” were not as closely scrutinized. (Linton, Roe v. Wade and the history of abortion regulation, 1989)
Common law governed issues like abortion until legislative action at the state level established code. The tide was turning. By 1849, eighteen of the thirty states had enacted statutes restricting abortion, and by the end of the Civil War, twenty-seven of the thirty-six states had law on the books criminalizing abortion for the attending physician. By 1868, twenty-seven of thirty-seven states considered abortion at any stage of pregnancy a crime. (Linton, Roe v. Wade and the history of abortion regulation, 1989)
It is interesting to note that in every state women were considered “victims,” and not perpetrators of abortion, regardless of intent or circumstance, largely because their testimony against the doctor would be difficult, if not impossible to procure if they were considered accomplices. (Linton, 1989) Women in early abortion criminal cases were not the culprits, in essence because they had no real recognition as citizens. A woman in the nineteenth century lingered legally somewhere between being property (a slave) and an extension of her husband’s or father’s persona.
In 1866, the Fourteenth Amendment to the United States Constitution established a broad definition of citizenship. After the Civil War, it was important to enable former slaves and their progeny to pursue opportunities granted to ordinary people. With this legislation a clearer picture of civil rights began to take shape in the nation. It was from this picture that the feminist movement gained new strength.
The Ninth Amendment to the United States Constitution; “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” spelled out the existence of non-enumerated rights that existed tacitly by virtue of the formation of rights enumerated in the previous eight amendments. It has been interpreted, especially in combination with the Fourteenth Amendment, to infer basic human rights, such as the right to privacy, are guaranteed by the Constitution regardless if they are not literally included in the text.
It is the evolution of constitutional law in the United States that illuminates the nature of the issue of abortion and its governance. From the standpoint of a consequentialist argument, abortion can be valued from three different approaches; that of the notion that personhood begins at conception, or; human existence begins at “quickening;” or via birth. If any law applies to the unborn fetus as a human being upon conception then abortion is murder. Conversely, if the law considers only an individual who is born as a citizen, then the outcome of the abortion is the affair of the mother and the attending physician or midwife, and not within jurisdiction of any law. As stated by the prominent pro-life attorney Paul Benjamin Linton, “the issue is not whether the unborn are human beings, but whether the unborn are constitutional persons.” (Linton, How Not To Overturn Roe v. Wade, 2002)
Roe v. Wade
On January 22, 1973, the Roe v. Wade opinion written by Chief Justice Harry Blackmun, was handed down by the United States Supreme Court. This action launched a firestorm of political controversy and invalidated a Texas statute that made procuring an abortion a crime absent a threat to the life of the mother, as well as nullifying any statute in the country that criminalized abortion. Part of Blackmun’s opinion was based on the tenets of the 14th and 9th amendments to the United States Constitution that guaranteed the right to privacy. Once again women in the United States were able to obtain safe, legal, and professional abortion services through the qualified caregiver of their choice.
Camps Lining Up
While legal abortions and associated services began to occur, two powerful separate movements sprang up out of the controversy. “Pro-life” proponents maintained that the Supreme Court ruling was unlawful and not a true representation of the majority of Americans. “Pro-choice” advocates insisted that abortion was an issue that was best left for discussion between a woman and her doctor, and that it was imperative that abortion remain legal.
After the decision, the Pro-life movement almost immediately began to assault the judicial with myriad cases and appeals. A key aspect of the Pro-life position is that personhood begins at conception, and that any other interpretation is morally wrong. One major organization associated with the Pro-life movement is the National Right to Life Committee. “Formed in 1973, in response to a United States Supreme Court decision released on January 22 of that year, legalizing the practice of human abortion in all 50 states, throughout the entire nine months of pregnancy,” the organization claims to support a “non-sectarian” and “non-partisan” effort to overturn the Roe v. Wade ruling. (NRLC, 2008) The NRLC considers that the decision made by the Supreme Court in 1973 was erroneous, and in the words of the dissent of Justice William Rehnquist, it declares a “constitutional right to an abortion,”
The Pro-choice movement is interested in keeping abortion safe and legal. Pro-choice has many feminist roots, and is based in the philosophy of abortion being a private matter between a woman and her caregiver, a philosophy that is at least as old as the practice of midwifery. Many feminists believe that the transformation or “medicalization” of birth was a tactic to circumvent one of the few woman-controlled services a female in the nineteenth century could experience. Historically, midwives have been around longer than doctors, and in many cases up until the nineteenth century, midwives were the only healthcare women had. (Toler & Bramhall, 1986) In addition to shifting the responsibility of childbirth to doctors, eliminating midwives meant all but eliminating abortion and birth control care giving. However, by contrast in modern time, the Pro-choice movement does enlist the assistance of the American Medical Association who by policy “recognizes and supports physician autonomy and discretion in medical situations concerning abortion.” (AMA, 2008) Organizations like Planned Parenthood also favor the Pro-choice movement.
Cases were brought before courts to challenge the decision and in many instances the statutory relief provided by Roe v. Wade was eroded by federal and state law. Among the issues brought forth by the challenges, federal funding for abortion services has been greatly reduced leaving poor or indigent women with little or no alternative to unwanted pregnancies. A recent proposed federal law sponsored by Republican Senator Sam Brownback from Kansas, the Unborn Child Pain Awareness Act of 2005, provided for a mandated script supplied during an abortion procedure that required doctors to advise women of the potential for “fetal pain” that could be experienced by the unborn child beyond 20 weeks of gestation. The AMA adamantly opposed this legislation because of the violation of the doctor-patient privilege, the intrusion of government into the doctor-patient relationship, as well as the questionable validity of the “research” performed at the behest of the sponsors of the bill. (AMA, 2008) The law did not pass, but many in Congress seek to derail Roe v. Wade through similar draconian measures.
If the United States Constitution is a collection of principles and thought based in consequentialist philosophy, that is, acts are judged by the outcome and effect on other people and property, then the notion that abortion should be illegal is not valid. If and when the United States considers the unborn as citizens, it is at that moment that abortion can be legally outlawed. However, this presents the nation with an important unavoidable dilemma; who or what has the authority, based on the United States Constitution, to deem when human existence begins? If the country is to continue to adhere to the Establishment Clause of the First Amendment of the Bill of Rights, then assigning a biblical or religious source to answer this question would violate the ethical framework on which the entire system of government rests. Chief Justice Harry Blackmun addressed the question with unmistakable humility: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” (Roe v. Wade, 1973)
AMA. (2008, October 28). Abortion notification. Retrieved November 8, 2008, from American Medical Association Web site: http://www.ama-assn.org/ama/pub/category/15689.html
Guttmacher Institute. (2008, July). Facts on Induced Abortion in the United States. Retrieved October 23, 2008, from Guttmacher Institute Web site: http://www.guttmacher.org/pubs/fb_induced_abortion.html
Jones, R. K., Darroch, J. E., & Henshaw, S. K. (2002). Contraceptive use among U.S. women having abortions in 2000–2001. Perspectives on Sexual and Reproductive Health , 294-303.
Linton, P. B. (2002, November). How Not To Overturn Roe v. Wade. Retrieved November 4, 2008, from Leadership University Web site: http://www.leaderu.com/ftissues/ft0211/opinion/linton.html
Linton, P. B. (1989). Roe v. Wade and the history of abortion regulation. American Journal of Law & Medicine , 15 (2-3), 227-233.
NRLC. (2008). Mission Statement. Retrieved November 1, 2008, from National Right to Life Committee: http://www.nrlc.org/Missionstatement.htm
Roe v. Wade (Supreme Court of the United States of America January 22, 1973).
Toler, J., & Bramhall, J. (1986). Midwives in History and Society. London: Croom Helm.
Tweedt, D. (1992). The validity of legislative restrictions n abortion under the oregon constitution. Temple Law Review , 1349-1371.