The author of this blog is Arfa Khan, a member of the HUMAN.DROITS Community.
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| A group of people holding signs that say: "Our Daughters Deserve Choices!", Keep your Laws off my Body" (Picture by Gayatri Malhotra) |
Introduction
Welcome to a historical tour through the nuanced and polarising pro-life vs. pro-choice argument in America. We must examine this issue's history, which has been influenced by changing legal systems, social movements, and important judicial decisions, in order to fully comprehend its intricacies. This blog will take you on a historical journey that begins with the early illegality of abortion in the 1800s when abortion was a big no-no and ends in June 2022 with the recent seismic change in the landscape of abortion rights in the United States. Ready? Let's roll
Abortion's Early Criminalisation
The story begins in Connecticut when the first steps were taken to make abortion illegal. Anyone who administered or took poison to end a pregnancy faced serious legal implications in the 1800s. During this time, Dr. Horatio Storer, a famous anti-abortion rights activist, played a crucial role in convincing more governments to criminalise abortion.
The intricate web of laws in the 1900s
Abortion was banned in every state as the 1900s progressed, but the regulations governing it varied greatly from one state to the next. This epoch saw the start of a lengthy and controversial debate over a woman's right to choose.
The Inception of Planned Parenthood
Margaret Sanger launched what would become the Planned Parenthood Federation of America in 1921. This organisation has been instrumental in pushing for reproductive rights and providing healthcare to women.
The 1960s: A Time of Transition
The growth of the equal rights movement in the 1960s featured a drive for broader rights for women, including control over their reproductive decisions.
A Glimpse of Change in Colorado in 1967
Colorado was the first state to decriminalise abortion in 1967, but only in circumstances of rape, incest, or where the mother's life was in danger. This was an important step towards recognising a woman's right to control her own body.
Roe v. Wade - A Historic Court Decision
The momentous Roe v. Wade court case in 1971 was a historic turning point in the fight for abortion rights. This case reached the Supreme Court, which ruled in favour of Roe in 1973, legalising abortion throughout the United States.
The passage of The Freedom of Access to Clinics Act in 1994
The Freedom of Access to Clinics Act was signed into law by President Bill Clinton in 1994. Physically obstructing the entrance to a clinic or intimidating women seeking abortion services became a federal crime under this Act.
The Partial Birth Abortion Act, 2003.
The Partial Birth Abortion Act Ban was put into law in 2003, making late-term abortions of partially formed foetuses illegal.
Hellerstedt v. Whole Woman's Health, 2016
In the case of Whole Woman's Health v. Hellerstedt, the Supreme Court delivered a landmark decision in 2016. This judgement emphasised the importance of states not imposing unreasonable barriers or limitations on abortion services that disproportionately harm women.
The Recent 2022 Shift
A leaked draft opinion in May 2022 revealed that the Supreme Court was about to overturn the landmark Roe v. Wade ruling. On June 24, 2022, the Supreme Court overturned Roe v. Wade, leaving abortion decisions to individual states and declared abortion is not a fundamental right anymore.
This historical trip lays the groundwork for a more in-depth examination of the Pro-Life vs. Pro-Choice debate, evaluating the ethical, legal, and sociological factors that continue to impact this difficult topic in the United States.
An insight into Roe v. Wade: A Landmark Decision
Few cases in American legal history have left as lasting an imprint as Roe v. Wade. This 1973 Supreme Court decision created a new constitutional right to abortion. On January 22, 1973, the Supreme Court issued a landmark judgement that forever transformed the landscape of abortion rights in the United States. Roe v. Wade created a constitutional right to abortion at its heart, changing the boundaries of individual liberty and governmental restriction.
Texas Ban is Overturned
The crux of Roe v. Wade was a Texas law that prohibited abortions, with exceptions allowed where the mother's life was in danger. The Texas Act effectively limited a woman's ability to choose whether or not to terminate her pregnancy. However, it was the courts' responsibility to determine whether this law was constitutionally valid.
The Decision of the District Court
Initially, a district judge ruled that the Texas law was unconstitutional. It found the Act to be excessively broad and ambiguous, raising concerns about its violation of a woman's Right to Privacy guaranteed by the Fourteenth Amendment It also infringed on the rights reserved to the people under the Ninth Amendment. Despite this evaluation, the district court declined to issue an injunction to prevent Texas from implementing its abortion ban. In practice, this meant that the current state of affairs for women seeking abortions in Texas stayed substantially unaltered.
Roe's Supreme Court Appeal
When the district court refused to grant injunctive relief, Roe took the unusual step of taking her case straight to the United States Supreme Court. This verdict would become crucial in the fight for reproductive freedom.
Justice Blackmun's Split Court Opinion
Justice Harry Blackmun wrote the majority judgement that would impact history in the midst of a Court that was deeply split. Justice Blackmun stated that the "implied zone of privacy," first described in the Court's judgement in Griswold v. Connecticut, included a woman's basic freedom to choose whether or not to terminate her pregnancy. This was a historical moment since it validated a woman's reproductive autonomy.
Balancing Individual Rights and State Interests
Nonetheless, the Court recognised that as fundamental as this right was, the State still had a compelling interest in protecting the fetus' future life and the mother's health. Balancing these competing interests became a major task. The Court ruled that any legislative restrictions on a woman's basic right to privacy must be carefully limited to satisfy a compelling state interest.
The Texas Law is Being Overturned
The Texas law was deemed unconstitutional & restrictive by the Court. In the first trimester of pregnancy, when the health hazards of abortion are often less severe than those of childbirth, a woman's private interest was regarded as vital and outweighed the opposing governmental interest. As a result, the Texas statute was invalidated, ushering in a new era for abortion rights in the United States.
The consequences of Roe v. Wade go well beyond the courtroom. This watershed judgement sparked a ferocious and long-lasting discussion that continues to define American politics, society, and ethics. As we go deeper into the Pro-Life vs. Pro-Choice issue, we will consider how this legal precedent has impacted and still continues to influence America's ongoing fight for reproductive rights.
Planned Parenthood v. Casey: A Reaffirmation of Abortion Rights in America
In Planned Parenthood of Southeastern Pennsylvania v. Casey, a landmark Supreme Court case in 1992, the Court reaffirmed and defined Roe v. Wade's key finding on abortion rights. The following is a synopsis of the case:
Background
The case was a legal challenge to the 1982 Pennsylvania Abortion Control Act, which put a number of limitations on abortion clinics and women seeking abortions. These constraints included informed consent requirements, mandated waiting periods, parental consent for minors, spousal notification, and provider record-keeping/reporting.
Legal Action
Abortion providers filed a lawsuit against then-Governor Robert Casey, claiming that the Act was unconstitutional. Following a trial, the District Court ruled that all five challenged sections were invalid. The Third Circuit Court of Appeals sustained some aspects of the district court's decision but did not uphold the spousal notice requirement.
Supreme Court Ruling
The case was accepted by the United States Supreme Court in order to evaluate the Roe v. Wade ruling and determine the extent to which states can restrict abortion access. The majority opinion, written by Justices O'Connor, Kennedy, and Souter, reiterated Roe's basic conclusion in three crucial points:
A woman has the right to abort a non-viable foetus without interference from the authorities.
States may control or prohibit abortions after foetal viability, but only in circumstances where a woman's life or health is jeopardised.
Throughout pregnancy, states have a legitimate interest in preserving both the health of pregnant women and the possibility of risk to the life of the foetus.
This ruling reaffirmed the constitutional right of a woman to choose abortion and upheld the legal structure established by Roe v. Wade, while enabling limited state controls, particularly after foetal viability.
Casey was a pivotal decision in the ongoing dispute over abortion rights because it established the legal requirements and reaffirmed Roe v. Wade's essential principles. It was a watershed moment in the evolution of abortion law in the United States.
19-1392 Dobbs v. Jackson Women’s Health Organization (06/24/2022): Revisiting Roe v. Wade in a Landmark Abortion Case
In the United States, Jackson Women's Health Organisation is a significant abortion-related case. It centres upon the constitutionality of Mississippi's Gestational Age Act, which was passed in 2018, and restricts abortions after the 15th week of pregnancy, with exceptions only for medical emergencies and severe foetal abnormalities, but no provisions for pregnancies caused by rape or incest. This legislation directly contradicts the precedents set out by the Supreme Court in previous abortion rights cases, specifically Roe v. Wade and Planned Parenthood of South-Eastern Pennsylvania v. Casey.
The Jackson Women's Health Organisation, Mississippi's only licensed abortion facility, filed the complaint. They sued in federal district court, claiming the law was unconstitutional, and they were successful in getting a temporary restraining order (TRO) to prevent its execution. The district court ultimately decided in favour of the clinic, holding that for 15 weeks LMP (Last Menstrual Period) is before the foetal viability threshold, States cannot outlaw abortions until that point.
After the TRO, Mississippi established a more stringent abortion ban that takes effect whenever a foetal heartbeat is found, usually around 6 weeks of pregnancy. This law was also ruled illegal by the Fifth Circuit Court of Appeals and the district court.
The petitioner claimed that Roe and Casey were incorrectly decided and that the Mississippi legislation should be regarded as constitutional based on a rational basis analysis when the matter eventually made it to the Supreme Court.
The Supreme Court affirmed Mississippi's Gestational Age Act by a vote of 6-3. In his majority opinion, Justice Samuel Alito claimed that neither Roe nor Casey should stand because the Constitution does not guarantee a right to an abortion. The Court looked at a number of reasons that supported overturning these decisions, such as the nature of the mistake, the strength of their justification, the viability of their rules, the impact on other legal fields, and the lack of specific reliance.
According to the Court's reasoning, abortion rights are not solidly rooted in the Constitution's text, tradition, or history. The ruling emphasised how the debates over abortion rights, which centre on the idea of "potential life," are very different from those over other issues, including contraception or same-sex relationships. The Court made it clear that its ruling does not call into question rulings that have nothing to do with abortion.
This decision in Dobbs v. Jackson Women's Health Organisation marks a fundamental shift in the legal environment around reproductive rights and has far-reaching ramifications for the future of abortion rights in the United States.
Analysing the Unique Intersection of Abortion, Religion and Choice
As we analyse the Dobbs v. Jackson Women's Health Organisation case, keep in mind that it delegated control of abortion legislation to several states rather than outright outlawing it. The concurring opinion of Justice Brett Kavanaugh emphasises that the constitutional issue at hand is not about the ethics or policy of abortion, instead focusing on what the Constitution actually says about it. He emphasises that the Constitution is unbiased and leaves the decision to legalise abortion up to the people and their elected officials in accordance with the democratic process at the State or federal level.
The majority's seeming deprivation of women's rights beginning with conception is criticised by the dissenting gang of Justices Stephen Bryer, Sonia Sotomayor, and Elena Kagan, dismissing the notion that the ruling won't have an impact on other fundamental rights. No siree! They contend that the Roe and Casey right is a continuation of prior precedents that shield individuals' private decisions regarding their families, close relationships, and procreation from governmental meddling. The justices who dissented from the decision are concerned that it may jeopardise the reproductive rights of a great number of American women.
Although the main focus of this discussion is American constitutional law, it also raises more general questions about how law and religion interact. Religious perspectives on the beginning of life and the morality of abortion are considered when making legal and policy decisions. According to others, the Supreme Court's right wing now has the chance to deviate from almost fifty years of precedent on abortion restrictions.
What’s intriguing is that, despite emphasising that there is no widely accepted moment when a foetus becomes a person, the decision is consistent with many theological perspectives, particularly Islamic theology, in which a foetus is regarded as a person after 120 days of gestation (the ensoulment date). This is consistent with the Court's judgement to allow abortion where the mother's health is jeopardised or the foetus has significant defects, but only up to 120 days after conception. There have been many problematic comparisons between the Dobbs ruling and the Islamic Sharia Law. Some have tossed around the term “Christian Sharia” to characterize the ruling and abortion bans nationwide as religious,
But the irony is that even religious organisations contend that abortion restrictions violate the principles of religious freedom and pluralism by forcing particular faiths on the general populace. They claim that such prohibitions unfairly hurt women, especially women of colour, and jeopardise religious practises that include helping the underprivileged and marginalised groups [Based on the 50-amicus brief filed by faith-based groups in the US].
Even the liberal wing of the Court, which primarily relies on the significance of honouring previous court judgements, is having a hard time in finding compelling arguments to uphold important portions of Roe and Casey, setting aside the disagreement over religious and secular perspectives. The pro-life movement's resistance to Roe v. Wade is sometimes seen as being simply religious. However, in my perspective, objections to abortion are not intrinsically religious, and the dominant viewpoint in Dobbs does not have a particularly religious undertone. Abortion is a serious moral matter, as Justice Samuel Alito stated for the majority, and the idea that there can be no secular anti-abortion viewpoint ignores the richness of moral perspectives in secularism. The gap between religious and non-religious viewpoints in America is likewise getting wider as a result of this argument.
The question of when human life truly begins becomes a matter of choosing what traits should be considered defining of humanity rather than determining a specific set of characteristics that define humanity because there is no universally accepted point at which a foetus should be considered a human being with its own ethical assertions, and because conception is not an instantaneous incident but an intricate and ongoing process. This latter query inevitably raises religious issues. Answering it requires a statement of religious faith, and trust me when I say this, we all have different takes on that. An unlawful establishment of religion would result from the Court endorsing a particular conception of when life starts, entailing the forbidden connection of religion and state.
As a result, the Dobbs judgement cannot be used to establish the exact start of human life. The claim is that because the right to an abortion lacks a foundation in culture and history, it cannot be considered a separate constitutional right. The Court merely needed to show that the cases it sought to separate addressed less significant moral issues in order to address this perceived weakness. All parties recognise the uniqueness and value of life in the womb, making this the most important argument the Dobbs opinion requires to make.
Now I'm not claiming that this line of argument is unavoidable or universally compelling. Nah! Instead, I want to emphasise how the Dobbs opinion fits into a larger tendency of depending on history to define rights, which is notably supported by the Court's originalist bloc. Due to concerns that such judgements are inherently subjective, the originalist movement has attempted to lessen reliance on independent moral judgements of judges. This historical approach was less prevalent at the time of Roe and Casey, but it has subsequently acquired prominence, like now it's the bee’s knees. Most importantly, the dependence on history is not intrinsically religious. In fact, its scepticism regarding moral reasoning can be seen as secular, relativistic, and even nihilistic.
Conclusion
To sum up, without the abortion debate, the idea that human existence begins at conception would be less divisive. Where else would it start? Even if conception is viewed as a process, it always results in the birth of a new human life. This conclusion, however, is rejected chiefly for fear of leading to an outright ban on abortion, and possibly even constitutional safeguards for life in the womb. As a result, the essential question is not when human life starts, but rather the moral weight assigned to that human existence at a very early stage of development. Careful thought must be given to this issue, especially the cultural gender bias that disproportionately places the responsibility for childcare on mothers.
America will gain from freely discussing this issue going ahead without slinging around derogatory terminologies like "religious". In fact, the Dobbs case may ultimately spur this discussion, which would include not only religious but also secular viewpoints painting a fuller picture of this complicated puzzle.
References
https://www.britannica.com/topic/Dobbs-v-Jackson-Womens-Health-Organization
https://www.hrw.org/news/2023/04/18/human-rights-crisis-abortion-united-states-after-dobbs
https://canopyforum.org/2022/09/23/there-is-no-religious-freedom-argument-for-abortion-in-islam/
https://scholarworks.iu.edu/journals/index.php/jsriue/article/download/31847/36487/82117
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