The Legal History of Abortion

Throughout history, the United States has faced and dealt with many social issues. From the war protests and civil rights movements of the 1960's, to the more recent controversies over isolationism and pre-emptive war, it is rare indeed to find a time when controversy is not present, at least at some level, within the nation. Even considering these controversies though, one of the most pressing social issues of our current time is doubtlessly the continuous conflict over abortion. What makes the abortion argument so complex lies not in a single element or issue of the debate, but rather in the deep and sensitive questions that must be asked before one even begins to think about the topic. However, there have been many definite attempts on behalf of the government and court systems in order to find a common ground for the issue, and try to resolve at least some of the arguments surrounding it. By examining evidence from past cases and debates, it becomes obvious that the issue of abortion has divided the country of America both socially and politically for over 200 years.

The legal history of abortion is a long and complicated one. In fact, to truly understand all of the abortion laws in the United States one must have an "adequate grasp" of many concepts, including judicial review, the theory of Separation of Powers, and many other political and governmental concepts (Schwenkler). However, abortion has actually been a common practice in the U.S. for hundreds of years. "Abortion was legal in the United States until the mid-1800s, but although it was common, it was rarely discussed" (Day 18). Traditionally, abortion law in the United States was derived from two main sources, being the United States Supreme Court and various state legislatures (Schwenkler). Even in the early periods of abortion law, however, there was still controversy to be found. As Mary Williams wrote in Abortion: Opposing Viewpoints, "If the courts would get out of the business of regulating abortion, most legislatures would pass laws reflecting the moderate views of the great majority" (Williams 78). Despite the history of the controversy in America, there are also many other reasons as to why the debate over the issue has pressed on for so many years.

Although a large controversy over abortion does exist, there is a long history of government and social involvement associated with it. An important first step in providing abortion laws was made with the formation of the "American Law Institute" in 1959, which published the idea that there should be a "standard abortion code" (Day). Perhaps most famous decision regarding abortion occurred in 1973 with the "landmark" case of Roe vs. Wade (Schwenkler). However, it often seems as though Roe v. Wade has just as much controversy as abortion itself. Since the decision was made in 1973, there have been a great number of people who have supported the action and a great number that have opposed it (Day 19). Before the case, states were the traditional source of abortion law (Schwenkler). The court decision invalidated all state laws and established a "fundamental right" for women who desired abortions to obtain them, some even called the case "landmark" (Schwenkler). Former president Ronald Reagan even wrote that, "Our nationwide policy of abortion-on-demand was neither voted for by our people nor enacted by our legislatures...The Supreme Courts decreed it to be policy in 1973" (Chilton 58). Although Roe vs. Wade eliminated the rights of state legislatures to suspend abortion rights, to this day "states can pass laws that uphold a women's right to abortion" (Schwenkler). Some have even marked the Roe v. Wade decision as "not constitutional law" (Chilton 58). Others however, argue, "Roe v. Wade rightly protected a fundamental human right and that it must not be ended by politics" (Schwenkler).

Although Roe v. Wade was the "landmark" case in terms of abortion, there also several other court cases which have played an important role in shaping the country's current policies towards abortion. "The Supreme Court cases of Webster in 1989 and Planned Parenthood vs. Casey in 1992 expanded state's rights to regulate abortion" (Schwenkler). And, while some disagree with the expansion of abortion rights for women, others staunchly support the idea. As activist Naomi Wolf wrote, "rolling back abortion rights would merely ease Lawmaker's conscience, while many women and more late-term fetus' than are aborted now would die in back alleys" (Williams 116). Although increasing power has been granted to the United States Congress to "pass laws providing some restrictions on abortion, [it] hardly ever uses this power" (Schwenkler). Even today there a wide variety of social and political organizations that choose to participate regarding abortion rights and wrongs (Day). Despite the attempted government regulations however, there continues to be a "warlike" atmosphere centered on the controversy (Day).

When it comes to arguing the two sides of abortion however, both make very interesting cases. The pro-life argument, which states that abortion, should be illegal in any circumstance. "The euthanasia movement...[which] is with us today with greater strength and persuasion than has even been the case before in the history of what we call modern civilization" (Chilton 59). Some argue that abortion is wrong in a very moral way, and that it borders on issues of murder (Guernsey 49). Others state a strong religious conviction that opposes abortion. Some even rely on the idea that the Bible outlines passages that forbid the taking of an infant's life (Day 71). It has even been stated that abortion is, "the most radical social issue of the time" (Chilton 62). Still others have the simple feeling that abortion is wrong. Most who oppose abortion cite adoption as an excellent alternative (Guernsey 24). In fact, a recent appeal was made to add a "Human Life Amendment" to the United States Constitution, this amendment would grant full rights to even the unborn (Day 25). However, just as some believe in the idea of pro-life, others choose to support the idea of pro-choice.

Those who believe in pro-choice believe that it is a woman's right to choose what to do with the life that is growing inside of her. Supporters of abortion point out that abortion is often done not to eliminate the life of an unborn child, but to save the life of the mother (Guernsey 80). Teenagers, a large age group that utilizes abortion, are "twenty four times more likely to die from childbirth than from abortion" (Guernsey 81). "Pregnancy and childbirth can be devastating if not properly prepared for, or if one is not ready to handle the needs of a child" (Day 92). If a family or single mother is unprepared or incapable of raising her children, some feel as though aborting the child is simply a better option that to have them be brought into a life in which they will not have the advantages or even the necessary elements to properly grow and survive. It is a proven fact that "teen mothers face a dim economic future" (Patterson). Some even state that the effect of laws, which prohibit or limit abortion "can range from pointless to dangerous" (Patterson). Another major component of the pro-life argument is that a woman should have the right of choice as to what to do with her body. It is simply not a choice that should be made by an outside party.
While both sides make very good points pertaining to abortion, no single side is wrong or right. In considering a moral issue such as abortion, one must decide for themselves how they feel and what decisions must be made regarding it. Of course some may believe that women should have the right to choose, and, naturally, there will be those who feel that the opposite is true. Abortion is doubtlessly one of the most controversial issues facing our society today. For more than 200 years, the issue of abortion has divided the country of America both politically and socially.

The research that I have done regarding abortion and the history behind it has greatly informed and influenced me on the subject. While I did learn a great deal regarding the history and conflicts over abortion, my basic opinions, as well as the facts that support it have remained the same. Although I feel that abortion is a horrible practice, I will always support the idea that a woman has the right to do what she wants with her life and her body. I am reminded of the words of the philosopher Voltaire, who said that, "I may disagree with what you have to say, but I will defend to the death your right to say it." Truly, I feel that abortion, like any other action, is a right. For example, I strongly disagree with the owning of firearms, however, I still feel that if someone wishes to own a gun, than they should have the right to do it. The controversy over abortion is very similar. Surely I do not feel that abortion is a fair or even just procedure, however, it is not the place of the government to tell a woman that she cannot do what she feels is best for both herself and the life inside of her.

Although there are a large number of people who feel that abortion should be completely outlawed, such is simply not justifiable. Not every pregnancy is a perfect example of a baby who will grow to lead a beautiful life. We simply do not live in a perfect world or a just society. Crimes such as rape happen on a regular basis. Should the victim of a rape be forced to suffer even more than they already have, bringing a child into this world who was not created out of love but of violence? Also, one must keep in mind that teenage pregnancies are not ideal situations for either the mother or the child. While abortion should never be the first option in such a case, it should be an option nonetheless. Also, in cases where the mother's life is in serious danger, should she be forced to continue in her pregnancy even if her own life is at stake?

Regardless of whether or not a person aggress with the idea of abortion, a person should have the right to have one if they deem fit. It must be remembered that a woman can just as easily choose not to have an abortion as she can to have one. It seems to be an unfair situation to outlaw a choice for victims of sexual assault, or those whose life will be endangered by their pregnancies. To put it quite simply, it is no one else's business what a woman does with her body. While abortion may be fundamentally and morally wrong, and I do believe that it is, there is no justifiable reason as to why a person cannot do what he or she wants with their own body. One must also realize that the separation of church and state plays a role here. While the American constitution may be based upon Christian beliefs, its people do not have to live by them. To eliminate the idea of abortion would be to eliminate a right. America does not deny its citizens the right to own guns (tools whose only purpose is to kill), and the law should not forbid a woman from making her own choice regarding her body and her life.

Sources:

Chilton, Williamson Jr. "Abortion and the conscience of the nation." National Review
Aug. 1984: 58.

Day, Nancy. Abortion: Debating the Issue. Greenhaven Press: United States, 1995.

Guersney, JoAnne Bren. Abortion: Understanding the controversy. Lemer Publications
Corporation: Minneapolis: 1993.

Patterson, Richard North. "The arguments of Abortion Rights Opponents Are Seriously
Flawed." At Issue Series. Bangor Area High School Library. 11 Oct. 2005
.

Schwenkler, John E. "Abortion Law in the United States: An Overview." At Issue:
The Ethics of Abortion. Bangor Area High School Library. 12 Oct. 2005
92196&srch>.

Williams, Mary E. Abortion: Opposing Viewpoints. Greenhaven Press: San Diego, 2001.