This is a dissertation chapter on Abortion:
Today few debates in American politics and society are as complex as the debate over abortion. The question of abortion encompasses many different issues, from the biological question of when life begins to the social question of the quality of an unwanted child’s life; from the legal question of whether some, not all, abortions should be outlawed to the ethical question of whether a rape victim may be required to bear her attackers child. Because of the debate positions on abortion are usually polarized.
Abortion has been known since ancient times. Women in virtually all cultures have used it as a form of birth control, regardless of whether the culture officially permitted it. Over many centuries, women wishing to terminate a pregnancy have drunk mildly poisonous liquids, rubbed certain herbs on their stomachs, or attempted to pierce their wombs with sharp objects. They may have acted alone or they may have had help. Sometimes these methods of abortion indeed destroyed the fetus. Sometimes, however, the woman succeeded only in hurting herself. At best, abortion was a hit or miss proposition in which the stakes for the woman were quite high.
In the middle of the nineteenth century, however, the situation began to change. As medical technology and knowledge increased, so did the options available to abortion seeking women. Over the decades, operating techniques grew refined enough to allow the doctor or a reasonably skilled layman to surgically remove a fetus from the womb. While this procedure almost always resulted in a successful termination of the pregnancy, many of the old risks for women remained. Until the development of antibiotics in the 1940’s, the death rate among women from abortions was quite high.
At different times, Western societies have taken all the stances on the abortion question. Abortions were permitted by English common-law at the time of the first European settlement, as long as the abortion was performed before the “quickening”-the moment in pregnancy, usually occurring around four months after conception, when the mother first notices fetal movement. This custom, in turn, was adopted by the American colonies. Exactly how common abortion was in colonial times is impossible to know, but most experts believe that it was far from rare. Certainly many newspapers of the time ran advertisements for abortion inducing drugs.
English common law was not the only Western Institution that accepted abortion in certain cases. So, too, did many churches. Between the fifth and nineteenth centuries, for example, the official teaching of the Roman Catholic Church nearly always permitted at least some early abortions- or at the very least, punished early abortions much less severely than ones carried out later in pregnancy. “Abortion does not count as killing,” wrote St. Jerome, until the individual elements have acquired their external appearance and their limbs.” St. Augustine, St. Thomas Aquinas, and Pope Innocent II were among Catholic thinkers who agreed with St. Jerome, as long as abortion was performed within the first 40 to 90 days of pregnancy. Pope Gregory XIV, who ruled who ruled at the end of the sixteenth century, extended the limit to 116 days. Abortions performed before that time carried no penalty at all.
Nor was the acceptance of abortion limited to Catholics. Most Protestants denominations have traditionally held more or less the same opinion. Official Methodist and Episcopal Church publications were among the colonial newspapers happy to accept abortion drug advertisements. With religious leaders willing to accept or at least overlook early-term abortions, abortion was not yet the moral issue it would later become.
The permissive approach to abortion began to change, though, in the nineteenth century. Exactly why these changes occurred is unclear. Some commentators have suggested that the changes were sparked by a greater concern for public health; while abortion was becoming less risky for woman it was by no means safe. Some scientists, too, were beginning to question whether there was a significant difference between the earlier and later stages of fetal; development. Others attribute the shifting attitudes to “a Victorian obsession to discourage illicit sexual conduct” by punishing woman who choose to have extramarital sex. Finally, anti immigrant sentiment played a role in the United States as well. Many people of Protestant descent feared that Catholic immigrants from Ireland and southern Europe would soon outnumber native born Americans since it was believed that these immigrants had fewer abortions. Access to abortion, some worried, would hasten the decline of what the native-born liked to call “good Anglo-Saxon stock.”
Whatever the reason for this change in attitude may have been, laws certainly began to change as a result. One by one, U.S. state legislatures began to make intentional abortion unlawful, regardless of how far along the pregnancy had advanced. New York banned abortion in 1828, though the new law called for stiffer penalties for abortions performed after the quickening than for earlier abortions. By 1860 most states has similar laws on the books, as did a number of European nations. In 1869 Pope IX officially changed Catholic doctrine to ban all abortions performed at any time for any reason. Even the American Medical Association, later a strong supported of abortion rights, opposed access to abortion during the 19860s. By the mid-nineteenth century, abortion was typically regarded as both criminal and immoral.
In the twentieth century, starting in 1959, we see the beginning of the modern day fight for the change in abortion laws. In 1969 a small, but at the time, large victory for those seeking the legalization of abortion was won. The California Supreme Court declared the state’s abortion law, as written, was unconstitutional. The law was rewritten but he damage had already been done. Others states began to reevaluate their laws. Washington D.C. was among one of the places that re-evaluated their laws. But, in their case no replacement law was written. The District of Columbia had ceased to outlaw most abortions. Change was on the way. Hawaii, Alaska, Washington, and New York followed. People all across the country were flocking to these states, especially, New York, to receive legal abortions.
Then, in 1973, an important abortion case came before the U.S. Supreme Court. Norma McCorvey a resident of Dallas, has sought an abortion but was prevented from obtaining one legally by Texas’s antiabortion law. Rather than go to a state that where abortion was legal or undergo an illegal procedure, McCorvey- backed by reformers looking for a test case-decided to fight. Using the pseudonym “Jane Roe,” she sued Henry Wade, the district attorney of her county, on the grounds that the statute violated the U.S. constitution.
Roe vs. Wade wound it’s way slowly through the legal system and eventually to the Supreme Court. In a surprising 7-2 decision, the Court ruled in favor of McCorvey, thus sweeping down antiabortion laws all across the country. The reason for the decision rested partly on the concept of the right of privacy. Although the right of privacy is not explicitly mentioned anywhere in the constitution, it nevertheless has been cited many times by jurists as a basic and important right of Americans. The right of privacy, argued Justice Henry Blackmun, included family issues such as when and whether to bear children, decisions that Blackmun believed were not the government’s concern. In particular, Blackmun wrote, the right of privacy was “broad enough to encompass a woman decision whether or not to terminate her pregnancy.”
The courts decision also rested partly on the fact that abortion had become a good deal safer over the years. When the original antiabortion laws were passed, Blackmun reasoned, the states could justify banning abortion because woman’s life was seriously endangered by the procedure: In sum the laws were to protect the pregnant woman from a dangerous operation. Medical advances, however, had changed matters. By the 1970’s, early abortion was very safe as medical procedure went- statistically safer, in fact, than childbirth- so very few woman were in danger of risking their health or lives by undergoing the operation. Thus, thus the state could no longer claim it had woman’s best interests at heart by banning abortion.
Even thought the Supreme Court decided to allow abortion it did not entirely abandon the fetus. Blackmun did not permit abortion on demand for anyone at any time, Instead he set standard for abortion at different times during pregnancy.
During the first trimester of pregnancy, the Court ruled that abortion essentially could not be regulated by the states at all- it was a personal and private matter between the woman and her doctor. During the second trimester, however, there were legitimate concerns about the woman’s health in undergoing abortion. Thus states could set policies that made it more difficult to get second trimester abortions, though states were not allowed to forbid it altogether.
The third trimester was a different situation. Here, Blackmun wrote, that the fetus was well enough developed that it’s rights needed to be taken into account as well. This permission to ban abortions only during the final three months of pregnancy was a small comfort to the forces opposed to reform, but at least, they reasoned, the court had not struck down all abortion related legislation, as some activists had urged it too.
Even though Roe vs. Wade took place almost 30 years ago, controversy over abortion has not lessened. Indeed, abortion is still a loaded issue in America today. In some ways it is perhaps more contentious that ever. At the root of the quarrel is the fundamental difference in people’s perception of what abortion means. For those who would like to ban abortion altogether, abortion boils down to a matter of life and death~ With an abortion the fetus dies; without an abortion the fetus may continue to live. This view point is reflected in language too. People on the side of the fetus in this debate call themselves “pro-life” or “right to life” and characterize their opponents as “pro-abortion,” “pro-death,” “anti-life,” or “baby killers.”
Opponents of pro-lifers, however reject the notion that abortion is about killing. They frame the issue, instead, as a question of a pregnant woman right to control her own body. They argue that the fetus is a collection of cells, nothing more than a potential life. To them the argument is about choice: A pregnant woman must have the ability to terminate her pregnancy if she so chooses. Thus, supporters of legal abortion choose to call themselves “pro- choice” and refer to their opponents as “anti-choice,” “anti-woman,” right-wing extremists,” or “fanatics.”
The ambivalence in which neither side can seem to grasp the upper hand in the fight also serves to heighten tensions. When questions have gone unresolved for so many years, victory on even minor issues takes on special importance.
As the years go by the debate shifts. New scientific evidence sets arguments in new directions. One of the large topics was the fate of so-called abortion drugs, notable the French medication RU-486, which promises- or threatens, depending on the viewer’s perspective- a non-surgical abortion. Another fairly recent controversy involved using aborted fetuses for medical research- scientists say such research could save lives, but many believe that using fetal tissue in this way is unethical and might provide an incentive for women to have abortions.
Social conditions change, too, sparking new debate. In the years immediately after Roe vs. Wade, for instance, there was little illegal protest by pro-life forces. Today, hundreds of incidents occur each year- from vandalism and scuffles during protests to shooting abortion providers- bringing up the question of whether this type of action is justifiable. The basic questions regarding abortion, whether it is murder, whether it ought to be legal, whether there are ever occasions when it can be justified- are still at the heart of the debate and there are new questions to be asked also.
Because of this it seems likely that the issue and controversies facing abortion will never be solved because neither side, pro- life or pro-choice can compromise enough on their views to come together and agree on one conclusion.
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