Women and Reproductive Rights

On January 22, 1973, the Supreme Court overturned a Texas ruling that refused women the right to seek out and receive abortions. Sarah Weddington successfully argued this class action lawsuit, Roe vs. Wade, before the Supreme Court, thereby affecting the majority of the States in the Union by declaring their anti-abortion laws unconstitutional. The decision stated that a woman's right to an abortion fell within the right to privacy protected by the Fourteenth Amendment. The ruling, also, gave a woman a right to abortion during the entirety of the pregnancy with the state reserving the right to regulate abortion in the second and third trimesters. (Weddington 154-157)

It has been over 30 years since the ruling and, if anything, the debate surrounding a women's right to abortion services is more controversial and contentious that ever. Today, there are two extreme sides to this issue, the pro-life (against legalizing abortion) and pro-choice (for legalizing abortion) advocates, as well as an emerging middle ground that believes in the legislated limited access to legal abortion. This paper will discuss the key issues in the abortion debate today and will, in addition, explore the differences between the abortion debate today and the debate at the time of Roe vs. Wade.

During the 1970's, the time of Roe vs. Wade, the goal of legalizing abortion was to protect the life of the woman and to de-criminalize the act of seeking out and receiving an abortion. Women, at the time, were forced to travel to illegal clinics in another state, or even Mexico, and mostly found themselves in unpleasant, if not completely unsanitary, environments. Many times the 'doctor' attending to them wasn't even a real physician, and most times, the woman experienced complications at varying degrees that put her life in great danger. Advocates for legalizing abortion felt that the injury and deaths of many women could be eliminated if they had access to a safe and legal abortion provided by a licensed physician. It was the health and life of women for which the advocates of abortion were fighting. (Weddington 11-34)

In addition, doctors and women faced criminal prosecution for providing and receiving abortion services. Advocates for abortion felt that this was counterproductive and extremely harmful to doctors who were trying to provide the best possible care for their patients. For some of the patients, abortion was the best option and restricting the type of medical care that they could receive limited their physician's ability to properly care for them. The battle for legalizing abortion was for the women whose pregnancy would be physically, mentally, and/or emotionally detrimental to their health. Criminalizing abortion only limited women from experiencing the full range of freedoms that citizenship provided and forced them to be slaves to their biology. Advocates for legalizing abortion were fighting to broaden the medical freedom doctors had so that they could provide the best possible care for women and not be put in prison for their efforts. Thus, the battle for legalizing abortion in the 1970's was to protect the health and well-being, even life, of a woman, and to increase the ability of physicians to provide care to their patients without the threat of criminal prosecution. (Weddington 11-34)

Major comparisons can be made between these advocates of abortion in the 70s and the advocates of today. In the 1970's it was religious leaders who felt the need to protect the women in their congregations and in their synagogues. By providing them access to abortion, they were seeing to their physical, emotional and spiritual health (Weddington 31). Today, in complete contrast to the 1970's, advocates against abortion typically site religious reasons for their fight. They are trying to protect the potential life of a pregnancy and the pregnant women's health and wellbeing is second to the life and well being of the fetus. Therefore, one of the clearest differences between the debate at the time of Roe vs. Wade and the debate today is who (or what) religious leaders are trying to protect.

Another important distinction between the 1970s and today is the effort to federally legislate abortion restrictions in order to protect a pregnancy's potential for life. In the 1970's the rights of the women were argued and now the focus of the debate has flipped to the rights of the fetus. In Justice Scalia's concurring and dissenting judgment in 1992's Planned Parenthood vs. Casey, it stated that Roe vs. Wade merely found that the right to seek abortion was protected by the Constitution in that it was a private issue. However, the Constitution did not (and consequently Roe vs. Wade did not) require States to permit abortions; only that they are allowed to if they wish. As a direct result of this judgment, the state has been able to place many restrictions on abortion services, including the Federal Ban on Partial Birth Abortions. Also, it is not uncommon for 24 hour waiting periods or counseling about alternatives to be required before a woman can receive an abortion (Ford 264).

Today abortion is still legal, in that states have a right to allow abortion service; however, this does not mean that all states do allow them and that all women have access to one. In 2003, the states passed 45 new measures that limited abortion services and 400 measures have been enacted since 1995 (NARAL). In addition, "Congress has banned access to abortion for virtually every woman who depends on the federal government for her health care, including Medicaid recipients, women in the military and military dependents stationed overseas, women in federal prisons, Native American women, federal employees, and even Peace Corps volunteers" (NARAL). Therefore, although the Court has ruled abortion a private issue, the state reserves the right to continued intervention into a woman's pregnancy and restrict the availability of abortion services in an effort to protect the pregnancy's potential life.

Today, in an attempt to defend a woman's access to abortion, the Freedom of Choice Act (FOCA) has been drafted. This attempt at federal legislation, legalizing abortion by federal law, not just by protection under the right to privacy, is in direct response to those who are legislating restrictions on abortion services. "FOCA will secure the right to choose by establishing a federal law that will guarantee reproductive freedom for future generations of American women. This guarantee will protect women's rights even if ... [the President] and Congress are successful in reversing Roe v. Wade or enacting even more restrictions on [the] right to choose" (NARAL).

Despite the effort from both sides to secure their position in the law books, the crux of the debate was, is, and always be the weighing of the woman's right of privacy and the fetus's right to life. In Roe vs. Wade priority was given to privacy in the first trimester and to life in the third (Sagan 196). Key issues today continue to be when exactly the rights begin for the fetus and should the state provide abortion services to women receiving government health care. With the passing of the Ban on Partial Birth Abortion and the Unborn Victims of Violence Act, it is clear that society is increasingly more protective of the fetus in utero. This is indicative of an emerging middle ground surrounding the issue of abortion.

In the 1970's is was important to legalize abortion in order to protect the devastating effects illegal abortion had on women's health and life and to ensure physicians the right to treat their patients without restrictions. Today, now that the women have had the right for 30 years, society has reexamined the issue and had scrutinized over the degree of freedom and access women have to abortion. Society has decided, by legislation, that a woman does not have exclusive rights to abortion services under every circumstance. At the once side, advocates say it is murder and never admissible (pro-life), at the other side, advocates say it is not the governments decision to decide what goes on with a woman's body (pro-choice), and in the growing middle ground, advocates admit abortion should remain legal but must be controlled and regulated by the state. The key issue today is: To what degree does a woman (and her doctor) have a say and to what degree does the state have a say? Most middle of the road advocates want to regulate abortion so that it is socially conscientious.

Many different issues have arisen since abortion became legal in the United States. Among them, in addition to the rights of the mother, what rights, if any, should a fetus receive? Also, at what point should the state have the right to intervene on behalf of the fetus? When is a fetus a human being? Should the murder of a pregnant woman be considered a double homicide? At what point does the health and wellbeing of the mother give way to the potential life of the fetus? Does the state have an obligation to protect potential life? In Weddington's own words, the battle for abortion rights is a "battle for the basic right of women to make their own decisions...
In the 1970's the debate was merely to remove the criminality of giving and receiving an abortion and to allow women greater control over their own reproduction. Today, the debate is more detailed. There are still the hard line advocates of either side; yet, an emerging middle ground is taking shape that advocates restricting abortion availability. To these adherents, the legality should remain; however, the access should be limited in order to protect the pregnancy's potential life.

Work Cited

NARAL, Pro-Life America. www.naral.org.

Ford, Lynne E. (2002). Women and Politics: The Pursuit of Equality. Boston: Houghton Mifflin Company.

Sagan, Carl (1997). "The Question of Abortion: A Search for Answers", Billions and Billions: Thoughts on Life and Death at the Brink of the Millennium. New York, NY: Random House.

Scalia, Justice Antonin (June 29, 1992). Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, Governor Of Pennsylvania, et al. No. 91-744. Argued April 22, 1992 -- Decided June 29, 1992. http://supct.law.cornell.edu/supct/html/91-744.ZS.html

Weddington, Sarah (1992). A Question of Choice New York, N.Y.: Penguin Press.