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Abortion, in its most common usage, refers to the deliberate premature termination of a pregnancy resulting in the death of any or all carried unborn infants. The ethics, morality, medical ramifications and legality of abortion is the subject of intense debate throughout the world. Abortion law is legislation which pertains to the provision of abortion. The current legal status of abortion in the United States is based on the Supreme Court's 1973 decision in Roe v. Wade as substantially modified by the Supreme Court's 1992 decision Planned Parenthood vs. Casey. Under Casey, the state may regulate abortion from the moment of conception in the interests of maternal health and fetal life, so long as it does not impose an "undue burden" on the exercise of the abortion right. After viability, which occurs at some point during the second trimester, the state may completely prohibit abortion, so long as an exception is provided for preserving the health and life of the mother.
In holding that abortion is a fundamental right protected by the due process clause of the Fourteenth Amendment, the Roe v. Wade decision overturned many state laws criminalizing abortion. This is controversial in part because abortion is not explicitly mentioned in the Constitution. With Roe v. Wade, the Supreme Court expanded the list of unenumerated fundamental rights recognized under the US Constitution, which had previously included rights to procreation, marriage, and marital privacy.
Some believe the Supreme Court interjected itself into what should have been a legislative matter. The Constitution doesn't address this issue, and as the Tenth Amendment affirms, on issues where the Constitution is mute, we have state and federal legislatures to write our laws. The Constitution is sort of the Bible for the United States of America, and the justices of the Supreme Court are essentially the theologians who decide what it means. They aren't supposed to write a new one. They're supposed to figure out what it means. When a change in the Constitution is needed, we have a mechanism to change it.
Some legal scholars believe it would be better for everybody if the matter of abortion was returned to the state legislatures. In that way the people's elected representatives can write the laws in accordance with the will of their electorates. We'd only have a hodgepodge of laws across the country, and in some areas abortion would be illegal if the electorate wants it that way. That's how democracy works.
What we call law is nothing more or less than the public's collective belief, their conviction of what right and wrong is. Whether it's about murder, kidnapping, or running a red light, society decides what the rules are. In a democratic republic, we do that through the legislature by electing people who share our views. That's how laws happen. We also set up a Constitution, the supreme law of the land, which is very carefully considered because it decides what the other laws may and may not do, and therefore it protects us against our transitory passions. The job of the judiciary is to interpret the laws, or in this case the constitutional principles embodied in those laws, as they apply to reality. In Roe v. Wade, the Supreme Court went too far. It legislated; it changed the law in a way not anticipated by the drafters, and that was an error. All a reversal of Roe will do is return the abortion issue to the duly elected state legislatures.
As a matter of common law in England and the United States, abortion was illegal anytime after quickening – when the activities of the fetus could first be felt by the woman. In the 19th century, many Western countries began to use statutes to codify or further restrictions on abortion. Anti-abortion forces were led by a combination of traditional groups opposed to abortion on moral grounds and medical professionals who were concerned about the danger presented by the procedure and the regular involvement of non-medical personnel in performing abortions.
It became clear in the following years, however, that illegal abortions continued to take place in large numbers even where abortions were clearly illegal. It was difficult to obtain sufficient evidence to prosecute the women and abortion doctors, and judges and juries were often unwilling to convict. Henry Morgentaler, for instance, was never convicted by a jury. He was acquitted by a jury in the 1973 court case, but the release was overturned by five judges on the Quebec Court of Appeal in 1974. He went to prison, appealed, and was again acquitted. In total, he served 10 months, suffering a heart attack while in solitary imprisonment. Many were also outraged at the invasion of privacy and the medical problems resulting from abortions taking place unlawfully in medically dangerous circumstances. Political movements soon coalesced around the legalization of abortion and liberalization of existing laws.
- Roe v. Wade 410 U.S. 113 (1973), on Oyez
- Barnhizer, David R., Roe v. Wade and The Conflict Between Legal, Political and Religious Truth (March 2006). Cleveland-Marshall Legal Studies Paper No. 05-104 Available at SSRN: http://ssrn.com/abstract=684161
- Hontz, Jenny, 25 Years Later: The Impact of Roe v. Wade, American Bar association, spring 1998
- Borgmann, Caitlin E. and Weiss, Catherine, Beyond Apocalypse and Apology: A Moral Defense of Abortion. Perspectives on Sexual and Reproductive Health, Vol. 35, p. 40, January/February 2003 Available at SSRN: http://ssrn.com/abstract=958788
- Abortion law