Why is it making headlines?
When it comes to abortion, everyone has their own strongly held beliefs. Lately, it has been making the news more than ever because of the retirement of one of the Supreme Court justices and the selection of his replacement. Many people are concerned about how the potential replacement could impact it. What will the likely outcome be if the current Supreme Court justice nominee is appointed?
The decision of Roe v. Wade was determined 45 years ago; however, the topic of abortion is still hotly debated today. The dispute between pro-life and pro-choice groups has been ongoing since the day the decision was made. Most recently, the deliberation has intensified because of the retirement of one of the Supreme Court justices. This means that a new justice will replace him and this person would likely be the deciding vote in many issues, including possibly overturning Roe v. Wade or, at a minimum, revising it to make it more challenging to have an abortion. Depending on what side you’re on, this can either be a good or bad thing. When you consider that anyone under the age of 45 has been living in a society where abortion has always been legal, it can seem unfathomable to them why this wouldn’t always be the case, but it is a very real possibility. In order to fully understand the implications this could have, an in-depth look at what was happening in America prior to, during the decision process and since the determination of Roe v. Wade is essential.
In the early history of our country, abortion was legal. It was deemed safe and acceptable to perform as long as the woman had not felt the first movements of the fetus, which typically occur around the fourth month of pregnancy. During the 1820s and 1830s, regulations were put into place to control the sale of dangerous drugs that women were using to induce abortions because the drugs were proving to be fatal to the women. By the 1850s, the American Medical Association was established and they recommended criminalizing abortions partly because they wanted to prevent midwives and others of with similar training from performing abortions since doctors viewed them as competition. The Catholic Church banned abortion at any stage of pregnancy in 1869. Congress passed the Comstock law in 1873, which made it illegal to deliver contraceptives and abortion-inducing drugs through the U.S. mail. By the 1880s, abortion was outlawed in most of the country. After this was the case, many woman, who could not afford to go to a country where abortion was legal or pay a large fee to an American doctor to secretly perform the abortion, would resort to having illegal abortions. The conditions under which these took place were often horrific. During the 1950s, it is thought that somewhere between 200,000 and 1.2 million illegal abortions were taking place each year. Many of these women ended up incredibly sick due to the procedures themselves or the conditions that the procedures were performed under causing them to have an infection. These women ended up in the hospital to get treatment and a good portion of them died from the complications. Unfortunately, these practices continued for years. In 1965, things started to change with the Supreme Court determining the law banning the distribution of birth control to married couples to be illegal. In 1970, Hawaii and New York legalized abortions. In 1972, the Supreme Court found the law banning the distribution of contraceptives to unmarried adults to be illegal. By the time the Supreme Court decided Roe v. Wade in 1973, abortion was already legal in Alaska and Washington as well.
The historic case of Roe v. Wade came about because in June 1969, a 21-year-old woman, Norma McCorvey, discovered she was pregnant and wanted to have an abortion. Since she lived in Texas, this wasn’t possible because of the state law prohibiting abortion for any other reason other than the purpose of saving the mother’s life. She attempted to have an illegal abortion, but the unauthorized facility had been closed by the police. So, she went to two lawyers who helped her file a lawsuit and gave her the alias Jane Roe. The defendant in the case was the Dallas County District Attorney Henry Wade and he represent the state of Texas. On June 17, 1970, a three-judge panel of the District Court found the Texas law to be unconstitutional because it violated the right to privacy found in the Ninth Amendment. The case was appealed and reached the Supreme Court in 1970 but would not be argued in front of the court until the end of 1971. Due to the retirement of two justices, it was reargued in 1972 before the Court issued its decision on January 22, 1973. The Supreme Court deemed that abortion was a fundamental right that was included in the guarantee of personal privacy that is found in the Fourteenth Amendment and any laws to restrict it would come under strict scrutiny. As part of their ruling, the Court divided pregnancy into three trimesters. During the first trimester, the decision to terminate a pregnancy was solely up to the woman. During the second, the state governments could regulate, but not ban, abortion. During the third trimester, a state could prohibit abortion to protect a fetus that could survive on its own outside the womb (even with medical support). The only exception being if the woman’s health was in danger. This decision helped to decrease the amount of illegal abortions, which helped to decrease the number of deaths of women who were having them. Since then, the process has become one of the safest procedures in the world.
Since the implementation of Roe v. Wade, the Supreme Court has made determinations on several other cases related to abortions. However, they aren’t the only branch of government to be involved. In 1976, Congress passed the Hyde Amendment, which bans the use of federal funds for abortion, except for cases of rape, incest or endangerment of the mother’s life. In 1994, the Abortion-Clinic Protection Bill was signed into law in order to protect abortion clinics from attacks, blockades and acts of intimidation after a doctor was shot and killed outside of a clinic. In 2000, the abortion pill (RU-486) was approved by the Food and Drug Administration. It allows a woman to terminate a pregnancy within seven weeks from her last menstrual period without a need for surgery. However, in 2007, the Supreme Court upholds the partial-birth abortion law, which was the first federal restriction on any abortion method since their Roe v. Wade ruling. Partial-birth abortion is the term used to describe the procedure where the cervix is dilated and the fetus is removed. As recently as 2014, the government is still figuring out what to do about abortion. The Affordable Care Act prohibits states from including abortion in any essential benefits package and no plan in an insurance exchange is required of offer coverage for abortion services. States also had the ability to bar all health insurance plans that cover abortions. All of this is leading up to our current moment in time with needing a new Supreme Court justice and how that will impact the future regarding a woman’s ability to have an abortion.
Most Americans are supportive of a woman’s right to choose whether or not to terminate a pregnancy, but this only goes so far. Once the fetus would be able to survive outside the womb, even if it requires medical intervention in order to survive, support for abortions from this stage forward have less support. When you consider what most people consider morally and ethically right, the support for woman’s choice up until the fetus is viable is logical. Yes, there are some who believe that life begins at conception, but if the fetus was brought outside the womb prior to being capable of surviving, even with medical help, it simply will not. There should definitely be guidelines in place to protect the health of the woman. Since we know abortions performed early in pregnancy are safe, there should be no reason to ban these types. Any abortion that is carried out before the fetus is viable should not be illegal. After this period, abortions should be for cases of rape, incest or to protect the mother’s health. With the availability of contraceptives, abortions should not be used as form of birth control.
Obviously, we know what happens when we ban abortion. The country saw a rise in the number of illegal abortions performed and this resulted in a number of women who became ill and died after trying to have one. It speaks volumes of the desperation of these women that they would risk dying to have an abortion. Thankfully, due to the advances in technology, the outcomes, hopefully, wouldn’t be so grim if abortions were banned again. It wouldn’t even be a cause for concern as long as our current policies remain in place.
In addition to all of this, women are equal citizens in our society and should have the right to decide what happens to their body without interference from legislature. No one likes to be told what to do, particular when it comes to their health. This is no different. Women should have control over what happens to their body. While there is no specific mention of abortion in the Constitution or its Amendments, the Founding Fathers could not have predicted every circumstance that would arise. Therefore, not everything is going to be covered specifically in them. It is the Supreme Court’s job to help interpret where circumstances that aren’t mentioned fall in respect to the laws. This is where the selection of the next Supreme Court justice is vital to the future.
While the current nominee has specifically said anything about abortion, his position might be clearer than some people realize. Brett Kavanaugh was a member of a three-judge panel on the D.C. Circuit Court of Appeals that ruled on 2017 case regarding a 17-year-old, being held by immigration authorities, who wanted to get an abortion. Kavanaugh stated that Roe v. Wade applies to everyone, including undocumented minors and gave the government two weeks to find a sponsor for the girl. This would remove her from federal custody and transfer the responsibility of handling the abortion to the sponsor. If no sponsor could be found, then the case could be reargued, but with no assurance that the girl could get an abortion. After the two weeks would have elapsed, the girl would be 18 weeks pregnant and the state of Texas, where she was being held, has a law banning abortion after 20 weeks. Since the typical process of finding/verifying a sponsor can take weeks or months and the girl’s lawyers had already tried to locate one without success, this ruling was not the compromise that it seemed to be. It placed the girl at unnecessary risk for complications for having to wait to have an abortion until further along in her pregnancy and it was a way for the government to get to the point in time where the abortion would have been illegal. However, the full D.C. Circuit Court swiftly reversed Kavanaugh’s decision and the girl was allowed to terminate her pregnancy. Bearing this ruling in mind, it demonstrates that while the Supreme Court may not directly overturn Roe v. Wade, it can pass rulings that would significantly hinder its scope. By appearing to follow the ruling but altering it enough that states would have more control over abortions. This would allow states to impose laws against abortion because the reasoning would be that if a woman truly wanted one, she could go to another state where it is legal. If Kavanaugh becomes a Justice, then he will most likely be the deciding vote in any future rulings. Since his views on the subject are clearly evident from his prior rulings, there is no question on how he’ll vote.
Everyone is entitled to their opinion and even if you think abortion is wrong or the woman having one may not be making the best decision, it doesn’t matter. It’s the woman’s choice because it is her body, her life and her decision. If you are against abortion, then you can choose not to have one, but don’t take away that right from someone who wants one.