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The Law and Abortion

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Laws are created to protect the people that they govern. Early American laws condemned abortion, yet they have radically changed since 1970. There are now a variety of laws in the United States and in the World which attempt to balance protection of pregnant women and protection of their unborn children. Many of these laws are surprising and many seem almost contradictory in their attempts to protect both mother and child.

(1) The Supreme Court is the highest interpretation of the Constitution in the United States. The court has made hundreds of important and revolutionary decisions, refining and/or striking down laws. Not surprisingly, the Supreme Court has made several important rulings about abortion.

(2) Despite the absence of anti-abortion laws, most states have laws that protect the unborn in other ways. This section shows some of the rights and protection babies have before birth.

The Supreme Court

"The State shall not deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the law." --Fourteenth Amendment

In the United States, the Constitution is the absolute bottom line as far as how laws can affect its people. The fourteenth ammendment, particularly this line, is used by both pro-choice and pro-life advocates to justify their legal positions on abortion. Pro-choice advocates believe that the fourteenth ammendment guarantees the right to liberty of women to have an abortion. Pro-life advocates believe that this same line guarantees the right to life of the unborn. The question is over the definition of person: is an unborn child a person and therefore given "equal protection of the law?"

Since the late 1960s, this question has become more and more debated. In 1971-72, 33 states independently debated the abortion issue, however all of them left it illegal. (Handbook on Abortion (Library of Congress Catologue #85-060144)) Everything changed on January 22nd, 1973, when the Supreme Court issued the ruling Roe v. Wade.

This decision, instantly famous and infamous, threw down state laws across the nation banning abortions. The decision guarenteed the right of women to abort their children before viability. Since the Supreme Court is the highest interpreter of the Constitution, all states must follow this decision.

However Roe v. Wade made several statements in defense of the fetuses as well. The decision admitted, "If the suggestion of personhood [for the unborn] is established, the appellant's case [for abortion] of course, collapses, for the fetus' right to life is then guaranteed specifically by the fourteenth amendment." Furthermore, Roe v. Wade defined viability (and thus legal personhood) as "potentially able to life outside the mother's womb, albeit with artificial aid."

This is the ruling of the Supreme Court. The ruling that legalized abortion guaranteed life to viable fetuses. Yet abortion is still legally performed upon thousands of viable fetuses each year.

Since Roe v. Wade, the Supreme Court has made additional decisions regarding the constitutionality of abortion.

On July 1st, 1976, The Supreme Court issued the decision Planned Parenthood of Central Missouri v. Danforth. This ruling stated that parental notification laws, and "right to know" laws (requiring information about abortion to be given to a mother considering an abortion) are constitutional. The ruling also declared that male partners have no right to interfere with (stop) a mother's right to an abortion.

On June 25th, 1990, the Supreme Court issued the decision Hodgson v. Minnesota. This decision upheld the right of states to enact parental notification and waiting period laws, provided that parental consent could be avoided through a lower court decision.

Ohio, in 1995, was the first state to ban partial birth abortions. This law was ruled unconstitutional because it did not have sufficient clauses to protect the health of the mother. Since then many states have enacted partial birth abortion laws. Courts have blocked enforcement or declared these laws illegal in Ohio and Michigan. In Alaska, Arizona, Arkansas, Georgia, Louisiana, Montana, Nebraska, New Jersey, and Rhode Island laws are currently being challenged. However in several other states partial birth abortion bans have been upheld.

Unborn Protection

Despite many court rulings over the unborn, the roles of unborn in society are not clearly defined by any one court case. State, national, and international organizations have attempted to define the rights and responsibilities of humans even before they are born. This is a very important issue, because citizenship is defined as having legal rights and duties. If the unborn are assigned legal rights and duties they must be citizens and should then be protected by their government.

Over the past few decades many laws have been enacted specifically aimed towards the unborn. Most are aimed to legally protect the lives of these babies. To name just a few of these laws:

In Los Angeles, a fetus can legally be sued

In Illinois, a pregnant woman who takes an illegal drug can be prosecuted for delivering a controlled substance to a minor.

In 1974, the US Congress voted unanimously to delay capital punishment of a pregnant woman until after the delivery of the baby to spare its life.
This delay was made to protect the fetus who wasn't responsible for its mother's actions and therefore wasn't also punished through death. However, when a woman is impregnated through rape, the fetus is still not responsible for its father's actions. Why in this case can the fetus still be punished by death?

Minnesota has a law requiring abortion clinics to dispose of aborted fetuses in a "humane" fashion: burying or cremating them.

"We do not see why the State's interest in protecting potential human life should come into existence only at the point of viability." (Webster vs. Reproductive Services Supreme Court case)

The state of Texas "has a compelling interest to protect fetal life." (Texas Criminal Appeals Court, Roe vs. Wade)

"I will maintain the utmost respect for human life, from the time of conception; even under threat, I will not use my knowledge contrary to the laws of humanity." (World Medical Association's Declaration)

"A doctor must always bear in mind the importance of preserving human life from the time of conception until death." (International Code of Medical Ethics)

"The child by reasons of his physical and mental immaturity, needs special safeguards and care including appropriate legal protection, before as well as after birth." (UN Declaration on the Rights of a Child)

"State Parties recognize that every child has the inherent right to life." "For the purposes of the present Convention, a child means every human being below the age of 18 years..." (United Nations Convention on the Rights of the Child, Articles 6 and 1)
(and yes, even the unborn are human)

The unborn have local, national, and international rights and responsibilities. They are recognized as human; they are recognized as people; they are defined as citizens. Yet in the case of abortion, the unborn still do not have the right to life.

"..no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." --From the conclusion in a report from the US Senate Judiciary Committee, 98-149, 7 June 1983, p.6.

State by State

"..no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." -- US Senate Judiciary Committee, 98-149, 7 June 1983, p.6.

Individual states have enacted laws to prevent or delay certain kinds of abortion. Before 1970, almost every state had laws banning abortions for any reason other than maternal protection. In 1971-72, 33 states independently debated the abortion issue and all of them left it illegal. (Handbook on Abortion (Library of Congress Catologue #85-060144) In 1973, Roe v. Wade ruled these laws unconstitutional. Since then many other state laws have been enacted. In 1995 Ohio enacted the first Partial Birth Abortion ban, and 18 other states have followed. In 1997 alone, 31 states enacted partial birth abortion bans, parental notification laws, and/or right to know laws.

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