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Courts Treatment of Abortion over Time

With the developing ethical standards of society, abortions are becoming more and more defensible. Abortion which is the practice of removing a fertilized egg from a mother has become a contentious issue in American culture, but should be generally supported since it is the mothers decision to make if she wants the pregnancy terminated or not. Abortion has been a very controversial issue in many countries the United States of America being one of them.

Origin of laws relating to abortion

Until the late 1800s abortion in the U.S was performed by healers who taught other women to do the same. During this period, abortion was carried out without any legal restrictions. Before the 19th century there were very few laws relating to abortion in the United States of America. At this time the country had adopted English Common Law. This law stated abortion to be legal so long as it happened before initial motion of the fetus that is felt by the mother. A couple of anti-abortion statutes began to come in place in the 1820s. In 1821, Connecticut put a law in place which was against the pharmacist of that time who used to sell medicines to women who wanted to have an abortion. In 1829, New York also made post-quickening abortions a criminal offense and pre-quickening abortions a misdemeanor. Quickening is that time when a mother is for the first time able to feel the fetus. At this time abortion was an unsafe medical practice which sometimes even led to death. Some people even argue that laws on abortion were passed as a way to protect the mother against these unsafe procedures.

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In 1860 the criminalization movements against abortion accelerated their campaign against abortion. By 1900 this movement had been able to achieve their objective and abortion had been declared illegal in almost every state in America. However, some states allowed for abortion in some extenuating circumstances. These circumstances were such as if a woman had been raped on if the child had been conceived in incest. Abortions were still readily available, a situation that did not please the criminalization movements.

At the time of the civil war, a very influential anti-abortion movement came into force. This group tried to influence states to either modify the existing laws on abortion or to come up with new laws against abortion. By 1910 their cry had been heard and all the states had put anti-abortion laws in place. This was so except in Kentucky whose judiciary considered abortion illegal. On the other hand there were activist groups which supported abortion. In Chicago, for example, there existed a group known as "Jane" which provided safe abortions for women. This group operated undercover and all one had to do was call there number and they would help make arrangements for a safe abortion. This group continued its operations all through 1960. In Griswold v. Connecticut, the Supreme Court declared the constitutional right to use contraceptives. The effect of this was categorizing all birth control that prevented implantation as a contraceptive and not as an abortion.

Good news for abortion legalization supporters came in 1967 when Colorado passed the legalization legislation. This legislation that had been passed was based on the Model Penal Code. This allowed for abortion in circumstances even where the mothers life was not in danger. The Model penal code was adapted by roughly a third of all states in the United States of America either in part or in whole. The notion of quickening was no longer used to establish criminal charge but was retained by some states so as to enable them to set the appropriate punishment for the offender (Hull, Hoffer& Hoffer 2004). Non-therapeutic abortions were considered illegal by all the states. The states had different exceptions for therapeutic abortions. Forty two states allowed for abortion only if it was necessary to save the mothers life.

By the completion of 1970, four states, Alaska Hawaii New York and Washington repealed criminal penalties for abortions which were performed early along during the pregnancy (Grossberg & Tomlins, 2008). However, these abortions had to be carried out by a by an accredited physician, subject to affirmed practical and health requirements.

In United States v. Vuitch, 1971, the United States Supreme Court denied the vagueness challenge against the District of Columbia statute against abortion. The challenge by Vuitch was so as to allow for other reasons for abortion to apply legally other than preservation of the mother's health.

Rulings by the United States Supreme Court on Abortion In 1973

The constitutionality of limiting abortion statutes was challenged on the basis of ambiguity, breach of the essential right of privacy, and rejection of equal protection. This happened between 1968 and 1972.

In 1973 the Supreme Court approved its rulings on the roe v. Wade and Doe v. Walton. In relation to both of those cases, the Supreme Court found that Georgia and Texas statutes regulating abortion were constitutionally intrusive with a woman's right to decide whether to abort or to carry the fetus to full term. The statute relating to abortion in Texas forbade all abortions not required to save the mothers life. The Georgia statute forbade abortion if: continued pregnancy was putting the mother's health and life at risk; if the baby was bound to be born with serious defects or abnormalities; or if the pregnancy was as a result of rape. The Georgia statute also required that the abortion be carried out in an endorsed hospital and after consent by the hospital board and two licensed physicians.

Justice Blackmun delivered the supreme courts decision. Six other judges also consented to this decision while two others, Justices Rehnquist and White, strongly disagreed with the decision. The ruling was such that states may not unconditionally forbid to abortions by making their performance a criminal offense. The ruling also stated that states should not make abortions unreasonably intricate to obtain by prescribing complicated bureaucratic guidelines.

The basis of this ruling was based on the Fourteenth Amendment right of personal privacy. This right embraced the right of a woman to decide whether to carry the pregnancy to term or not. In regards to the scope of this right, the court resolved that it included only those personal rights that can be viewed as essential and bears an addition to activities relating to family affiliation, education, marriage, child nurturing and reproduction. According to the court such a right was expansive enough to cover a woman's choice whether to terminate the pregnancy or not.

So as to protect this right against state meddling, the Supreme Court ruled that since the right to personal privacy is an essential right, then only credible state interest could lead to limitation of this right. The court also recognized state interests such as the shielding of the mothers health and safeguarding of the fetus' unborn life and the link between this two interests and the state's anti-abortion law. The Supreme Court saw these factors as inadequate for a ban on abortion. In lieu of this the courts put emphasize on the nature of pregnancy and sought the states interest to be satisfactorily compelling in permit abortion only at certain stages of the pregnancy. The court found that only after the first trimester does the state's interest in shielding the mother's health provide an adequate basis to validate state regulation of abortion.

The feasibility of the fetus of the unborn life was an undeniable point with respect to the state's interest to the possible life. Following this feasibility the state's interest allows it to disallow an abortion except when it is exclusively meant to shield the mother's life and health. The court's definition of feasibility is that point at which the fetus is able to exist outside the mother's body even though with medical aid. A summary of the Supreme Court's holdings is as follows;

  • At the period r before the finish of the first trimester of the pregnancy, the resolution to terminate is left at the sole judgment of the pregnant woman's attending doctor
  • For the period right before finish of the first trimester the state in a bid to uphold the health of the mother may control abortion in ways which it sees practically connected to the mother's health.
  • In the period following to feasibility the state has the right to prohibit abortion unless the pregnancy puts the mother's health and life at risk.

In Doe v. Walton the Supreme Court reiterated its verdict in Roe v. Wade that the decision of when an abortion is deemed to be necessary rests with the doctor and the woman carrying the baby. It put emphasize on this decision by stating that just as a state may not forbid abortion by making it a criminal offense, states may also not make the performance of abortion irrationally hard by prescribing highly structured bureaucratic barriers. In Doe v. Walton the court removed the state condition that abortion is carried out in an approved hospital; that abortions are permitted before their performance by two members of the hospital board and that two licensed doctors agree to the decision to abort. However, the court noted that this would not be relevant to statutes that confined the sacred and moral viewpoint of denominational hospitals.

In Roe v. Wade the court also dealt with the question as to whether a fetus is a person or not. This was in relation to whether fetuses were covered by the contents of the Fourteenth Amendment and its requirements. The court thereby indicated that the constitution had not defined who a person is but showed that in all circumstances where the word 'person' is used it has its application only post-natally. None of these circumstances showed the word being used to indicate pre-natal application. The Supreme Court thus concluded that the word 'person' is not used in reference to the unborn. The court did not however state when life begins. It only stated this in reference to feasibility of the fetus as the point where it is able to exist outside the mother's body even though with assistance.

The supreme courts decisions consequent to Roe v. Wade and Doe v. Walton

Informed consent

The court held that informed consent statutes which required the mother seeking an abortion to sign a consent sheet after her doctor had carefully informed her of the risks and alternatives to an abortion, to be constitutional if the obligation related to the mothers health. The requirements of the informed consent statute required that it must be scarcely drawn so that it does not have an effect on the doctor-patient liaison (Francome, 2008). The kind of information to be given to the mother also varies with the stage of the pregnancy which she is at currently. This was decided by the court in Planned Parenthood v. Danforth.

In City of Akron v. Akron Center for Reproductive Health, Inc., the court also came up with another provision requiring that the doctor informs the pregnant woman of:

  • the current shape of the pregnancy
  • the progress of her fetus
  • the date of likely feasibility
  • the bodily and emotional complications that may arise after she goes through with the abortion
  • the accessibility to agencies to give her the necessary support and information pertaining to birth control, adoption, and childbirth

The doctor was also required by law to tell the pregnant woman of the risks that were implicated with terminating the pregnancy and also to supply her with any other information which according to his medical verdict was necessary to aid her in making her final decision.

The Supreme Court resolved that this informed consent requirement was not constitutionally viable as it gave the government supremacy to decide what information was to be given to the pregnant mother before she made her decision on whether to terminate the pregnancy.

Parental/ spousal consent

The court in Danforth found the laws requiring that the spouse of the pregnant woman to provide a written statement to allow the abortion as unconstitutional. This was only if the statutes permitted for the father of the unborn baby to disallow the termination during the first trimester. Due to the courts verdict in this case, the court also confirmed the lower court judgment in Coe v. Gerstein which saw as unconstitutional spousal consent regardless the stage at which the pregnancy was.

With regards to parental consent, the Supreme Court ruled that it was unconstitutional for a parent to forbid termination of pregnancy by a child who is a minor. The court later ruled in Bellotti v. Baird, that while the state may need a minor to make available parental consent, it may also provide substitute procedures to be followed if the parent denies the minor his/ her consent (Olasky, 1995). Bellotti v. Baird thus entitles a minor to some arrangements which enable her to prove of her capability to make knowledgeable decisions showing that the termination of the pregnancy will ultimately be in her best's interests.

In City of Akron the court made it legally ineffective the ordinance that barred a doctor from carrying out an abortion on a minor without consent from one of the parents or guardians of the minor; the minor obtained an order from the court providing jurisdiction over the minor to carry out the termination of pregnancy.

In Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft, the Supreme Court of the United States upheld the resolution made in Missouri. The ruling here was different from that in City of Akron as it made no provisions through which an pregnant minor could demonstrate to the court that she was capable of making a well-versed decision in spite of her immaturity.

Parental notification

In 1981 the court resolved Utah state law making it a criminal offense for doctors to terminate the pregnancy of an un-emancipated, dependent minor without informing her parents. The Supreme Court cited an interest in protecting family integrity and protecting adolescents.

Conclusion

The law relating to abortion has come a long was and will continue to de a very contentious issue. However, the courts in our country have made long, well thought decisions in regards to abortion thus legalizing it.

With the developing ethical standards of society, abortions are becoming more and more defensible. Abortion which is the practice of removing a fertilized egg from a mother has become a contentious issue in American culture, but should be generally supported since it is the mothers decision to make if she wants the pregnancy terminated or not.

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