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> | Abortion: Irrevocable & Fundamental Right | | | History | |
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< | Women have been intentionally ending their pregnancies for thousands of years. The oldest written records of the remedies used for contraception and techniques used for abortion exist on Egyptian Ebers Papyrus written around 1550 B.C. (1) From colonial America until the mid-nineteenth century, the phenomena known was the ‘quickening’ was used to determine whether a fetus’ existence was relevant in law (Mohr, 1979). The term quickening refers to, “the first perception of fetal movement by the pregnant woman herself,” which was the only completely reliable method of determining pregnancy prior to more recent medical advances (Mohr, 1979). Pregnancy prior to the quickening were considered, “potential for life,” rather than life (Mohr, 1979). | >
> | Women have been intentionally ending their pregnancies for thousands of years. The oldest written records of the remedies used for contraception and techniques used for abortion exist on Egyptian Ebers Papyrus written around 1550 B.C. (1) From colonial America until the mid-nineteenth century, the phenomena known was the ‘quickening’ was used to determine whether a fetus’ existence was relevant in law (2). The term quickening refers to, “the first perception of fetal movement by the pregnant woman herself,” which was the only completely reliable method of determining pregnancy prior to more recent medical advances (2). Pregnancy prior to the quickening were considered, “potential for life,” rather than life (2). | | | The American Medical Association's Role | |
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< | One prevailing theory on the origin of government intervention in the United States is that doctors in the nineteenth century wanted to corner the market on medical practice and saw criminalizing abortion as the pathway to do so (1). Midwives, apothecaries, and homeopaths were often employed by women seeking to terminate their pregnancies and ending that avenue for business more distinctly separated their services from doctors’ services. Doctors were organized through the American Medical Association (AMA) and able to advance their interests. In 1821, Connecticut was the first to pass an explicitly anti-abortion law which outlawed, “willfully and maliciously [administering] any deadly poison, or other noxious and destructive substance,” with the intention of ending a pregnancy after the quickening with up to a lifetime imprisonment (2). This law can be seen as targeted at the remedies that apothecaries used to help assist women with their abortions, which were sometimes dangerous; it did not affect surgical methods (2). Missouri and Illinois followed with similar laws (2). This change illustrated a break from the traditional view towards more restrictive regulation. | >
> | One prevailing theory on the origin of government intervention in the United States is that doctors in the nineteenth century wanted to corner the market on medical practice and saw criminalizing abortion as the pathway to do so (2). Midwives, apothecaries, and homeopaths were often employed by women seeking to terminate their pregnancies and ending that avenue for business more distinctly separated their services from doctors’ services. Doctors were organized through the American Medical Association (AMA) and able to advance their interests. In 1821, Connecticut was the first to pass an explicitly anti-abortion law which outlawed, “willfully and maliciously [administering] any deadly poison, or other noxious and destructive substance,” with the intention of ending a pregnancy after the quickening with up to a lifetime imprisonment (3). This law can be seen as targeted at the remedies that apothecaries used to help assist women with their abortions, which were sometimes dangerous; it did not affect surgical methods (3). Missouri and Illinois followed with similar laws (3). This change illustrated a break from the traditional view towards more restrictive regulation. | | | | |
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< | The AMA spread information that abortion procedures were damaging, “[women’s] own health and the health of the nation,” (1). This campaign was extremely successful. Mohr wrote that by the turn of the twentieth century, the US, “completed its transition from a nation without abortion laws of any sort to a nation where abortion was legally and officially proscribed,” (2). Even distributing information about contraceptives and abortion became illegal in 1873 as part of the Comstock Laws. | >
> | The AMA spread information that abortion procedures were damaging, “[women’s] own health and the health of the nation,” (2). This campaign was extremely successful. Mohr wrote that by the turn of the twentieth century, the US, “completed its transition from a nation without abortion laws of any sort to a nation where abortion was legally and officially proscribed,” (2). Even distributing information about contraceptives and abortion became illegal in 1873 as part of the Comstock Laws (2). | | |
Movement for Reproductive Freedom
The American Birth Control League was formed in 1916 by Margaret Sanger. This group existed in opposition to Comstock Laws by distributing information about and advocating for access to birth control. The League evolved into Planned Parenthood and served a role in the changing attitudes of the public. The feminist movement in the 1960’s and 1970’s in the US brought the topic of reproductive freedom to the forefront of the nation’s consciousness once again. After Sanger’s death, Planned Parenthood became a major proponent of abortion-rights—both establishing clinics and lobbying for legislation. | |
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< | After some states began loosening their own anti-abortion legislation, the national government stepped in 1965 when the Supreme Court oversaw Griswold v. Connecticut and ruled that a Comstock Law in Connecticut which outlawed the use of any drug or device for contraceptive purposes was unconstitutional (3). The law violated a ‘right to privacy’ (for married couples) which can be inferred from the Bill of Rights (3). Griswold was reaffirmed in 1972’s Eisenstadt v. Baird which extended the right to birth control for unmarried people as well (4 Justice Brennan wrote, “If the right to privacy means anything, it is the right of an individual, married or single, to be free from unwarranted governmental intrusion into matters to fundamentally affecting a person as the decision whether to bear or beget a child,” (4). This landmark case set the precedent for the landmark case—Roe v. Wade. | >
> | After some states began loosening their own anti-abortion legislation, the national government stepped in 1965 when the Supreme Court oversaw Griswold v. Connecticut and ruled that a Comstock Law in Connecticut which outlawed the use of any drug or device for contraceptive purposes was unconstitutional (4). The law violated a ‘right to privacy’ (for married couples) which can be inferred from the Bill of Rights (4). Griswold was reaffirmed in 1972’s Eisenstadt v. Baird which extended the right to birth control for unmarried people as well (5). Justice Brennan wrote, “If the right to privacy means anything, it is the right of an individual, married or single, to be free from unwarranted governmental intrusion into matters to fundamentally affecting a person as the decision whether to bear or beget a child,” (5). This landmark case set the precedent for the landmark case—_Roe v. Wade_.
Abortion Law Today
While Roe is the most famous abortion case, Planned Parenthood v. Casey is the ruling case of modern abortion laws in the US. The plurality opinion essentially came down to allowing anti-abortion laws so long as they do not place an ‘undue burden’ on women that constitute a ‘substantial obstacle’ in terminating a nonviable fetus (6). This rolled back the more extensive protections of Roe based on trimesters (7).
Reproductive freedom rights are still under attack today and may be in trouble given the new 6-3 Conservative majority on the US Supreme Court.
Why Protection Matters
There are many reasons why free societies must include the right to abortion. From a legal perspective, generations of women have born and raised in a society that has recognized their right to reproductive freedom. As stated by you, Professor, “never before has [the Supreme Court] stripped millions of Americans of a right that has long been characterized as fundamental,” (8). There would be an abundance of issues surrounding the sentencing allowed for those who have abortions—if fetuses are held to be persons, it would be a violation of equal protection to punish abortion as anything other than murder, and if they are not, then what is the point? Additionally, a vast diversity of laws between states would cause many interstate legal issues if women travel to get their necessary medical care (8).
Philosophically, I think of Judith Thomson’s violinist thought experiment (9). Even if we were to accept the premise that fetuses are human beings, as seems to be necessary one to strip women of a fundamental right to bodily autonomy and privacy, would that be sufficient? I say no. We do not require people to be Good Samaritans in this country and we know that women who give their babies up after birth do not maintain a special relationship duty to them as their children (9). So why then, should we force this duty on women for nine months to feed and provide for the well being of another person not only if her own home, but her own body? Women have been yearning for the ability to choose if and when to have children for as long as we know, and now that we have the technology to give that to them, we cannot allow the government to drag us back.
Works Cited
1. Potts, Campbell (2002). History of Contraception. http://www.24grammata.com/wp-content/uploads/2014/08/Malcolm-Potts-and-Martha-Campbell-24grammata.com_.pdf
2. Mohr, J. C. (1979). Abortion in America: The origins and evolution of national policy.
3. Swanson, K. W. (2015). The doctor's dilemma: Paternalisms in the medicolegal history of assisted reproduction and abortion. The Journal of Law, Medicine & Ethics, 43(2), 312-325. doi:10.1111/jlme.12247
4. Griswold v. Connecticut https://1.next.westlaw.com/Document/Id4c70e349c1d11d991d0cc6b54f12d4d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
5. Eisenstadt v. Baird https://1.next.westlaw.com/Document/Id4c9a6519c1d11d991d0cc6b54f12d4d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
6. PP v. Casey https://1.next.westlaw.com/Document/I72e7a2ac9c9a11d991d0cc6b54f12d4d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
7. Roe v. Wade https://1.next.westlaw.com/Document/I2211f9c19bf011d993e6d35cc61aab4a/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
8. Moglen, Weddington, Karlan (1992) https://1.next.westlaw.com/Document/I6be67da16be511d8a77e9bdc05ac4a32/View/FullText.html?listSource=Foldering&originationContext=clientid&transitionType=MyResearchHistoryItem&contextData=%28oc.Search%29&VR=3.0&RS=cblt1.0 | | | | |
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> | 9. Thomson (1971). A Defense of Abortion. https://spot.colorado.edu/~heathwoo/Phil160,Fall02/thomson.htm | | | | |
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> | 10. Tribe, Laurence H. Abortion The Clash of Absolutes. W. W. Norton & Company, Inc., 1992.
(Read this book to get a better hold on abortion law, but did not cite specifically from it.) | | | |
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