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Abortion and the Right to Privacy
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United States' law is descended from English common law. As it stands, the historical idea of a life beginning at "quickening" has been replaced by the idea of fetal "viability." Despite a brief historical hiatus, women maintain the right to an abortion, before life begins. Despite Georgia's best efforts, fetuses are not people, legally or otherwise. Naturally, states regulate abortions and even proscribe them, under specified circumstances. However, the historical right to privacy in the home includes the right to choose whether to procreate. The right to privacy is protected in the substantive due process doctrine of the Constitution.
Because the United States was a British colony, our common law is descended from British common law. British common law does have something to say about abortion. Interestingly enough, it involves the concept of quickening. First mentioned in 1530, quickening is "the stage of pregnancy when movements of the fetus are perceptible" (quicken, v. 4, 1991). Note that usually quickening occurs in the fourth or fifth month of pregnancy (Murkoff & Mazel, 2008). Pope Innocent III enshrined this notion in religious law early in the 13th century (Bullough, 2001). Quickening was when he believed that the soul entered the fetus (Bullough, 2001). Since there was no soul, abortion before quickening was a lesser crime, usually a misdemeanor, as Coke viewed it in 1648 (2001). Formal, legislated law should also be taken into account. Not until 1803, with Lord Ellenborough's Act, was British law written to clarify abortion (Keown, 2002). Pre-quickening deserved "a fine, imprisonment, the pillory, whipping, or a combination thereof, or transportation for a maximum of fourteen years" to the colonies, and post-quickening deserved the death penalty (Keown, 2002).
In the United States, these standards held true. For example, James Wilson, one of the Founding Fathers, said, "life begins when the infant is first able to stir" (1967). He held that "life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger" (1967). As part of the growing competition between doctors and midwives, state laws were passed that criminalized abortion, contraception, and knowledge about either (Bullough, 2001).
But not until 1829, in New York, was abortion made illegal, except when "necessary to preserve the life of such woman" (Bullough, 2001). This exception was the "therapeutic" right to an abortion, which required two doctors to agree that it was therapeautic (Bullough, 2001). Later, New York criminalized all abortions (Bullough, 2001). However, these laws mostly protected women against unsafe abortion practices (Hitchcock, 2006). Not until the federal Comstock laws were passed in 1873 was the information about how to have an abortion made illegal, under the guise of public indecency (Bullough, 2001).
In the United States, the Constitution was the first legislated law, as opposed to common law. In the 14th Amendment to the Constitution, passed in 1868, there is a clause known as the Due Process Clause:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (2010)
On the face of it, it seems perfectly clear that due process of law means things like police officers reading arrestees their rights. Interestingly enough, the Supreme Court has developed a whole theory around this clause, called "substantive due process" (Stevens, 2003). One might interpret "substantive due process" as the underlying reasons why the law is just and fair (Stevens, 2003). Due process is mentioned in the Fifth Amendment and the Fourteenth Amendment (The Declaration of Independence and the Constitution of the United States of American, 2010). The Fifth Amendment only talks about what the federal government can do, but the Fourteenth Amendment talks about what the states can do (Stevens, 2003). "Substantive due process" has many applications, but the one concerned with abortion is the right to privacy.
The Supreme Court has interpreted the right to privacy generally. In Meyer v. Nebraska in 1923, the Supreme Court introduced the right to privacy in a family home, saying that people have "the right & #8230; to marry, establish a home and bring up children" (Garrow, 1998). Logically, of course, if you have the right to bring up children, then you would also have the right to not bring up children, and this was the line of reasoning used in the Poe v. Ullman defense of having contraceptives (1961). Justice Douglas supported this line of reasoning, because, as he said, "when the State makes "use" a crime, and applies the criminal sanction to man and wife, the State has entered the innermost sanctum of the home. If it can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wife. That is an invasion of the privacy that is implicit in a free society (Poe v. Ullman, 1961)
His dissent left open the door for someone to actually be prosecuted for having contraceptives and then appeal all the way to the Supreme Court. This happened in Griswold v. Connecticut (1965).
Estelle Griswold decided to test the waters by opening a birth control clinic in New Haven, Connecticut, the only state still having a law banning contraception, including spreading information about it (Hitchcock, 2006). She was duly arrested, convicted, and fined $100. She appealed up to the Connecticut Supreme Court, and then to the Supreme Court on the basis of the Fourteenth Amendment right to privacy (Hitchcock, 2006). The Supreme Court agreed that the "Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights" (Griswold v. Connecticut, 1965).
Justice Douglas noted that the clinic was offered exclusively to married couples and that even though one could say that the court could "touch economic problems, business affairs, or social conditions" (Griswold v. Connecticut, 1965), that the court was primarily concerned with the right to privacy. He pointed out that the rights to school choice, free speech, freedom of inquiry, thought, and teaching, and freedom of assembly are not specifically mentioned in the Constitution, but that people expect them as part of their right to privacy (Griswold v. Connecticut, 1965). He agrees that they should, because without "those peripheral rights, the specific rights would be less secure" (Griswold v. Connecticut, 1965).
As the right to contraception became comfortable for Americans, abortion came next in their minds. German measles was still a serious public health problem, and women who contracted the measles early in their pregnancy had about a 50/50 chance of delivering a severely damaged, non-viable baby (Garrow, 1998). The public became aware that doctors tended to perform abortions because women became suicidal at the thought of delivering such a disastrous result of their pregnancies, in spite of antiabortion laws (Garrow, 1998). According to Gallup polls, most Americans (including Roman Catholics) felt that abortions should be legal in cases where the mother's life was in danger, in cases where the pregnancy was the result of rape, and in cases where the result was merely severe birth defects (Garrow, 1998). Clearly, public opinion was comfortable with abortion.
The public also became comfortable with contraception. In 1970, Congress passed and President Nixon signed into law Title X of the Public Health Service Act, which provided contraceptives and other related preventive health services (Garrow, 1998). In 1977, because of Carey v. Population Services International, Title X funds were allowed to be used to provide contraception to minors because minors have the same right to privacy and to not have children as adults (Garrow, 1998).
In Texas, in 1969, the anti-abortion law permitted abortion in the case of rape and incest (Garrow, 1998). Two female attorneys decided to file a class action suit on behalf of a female client, pregnant with a third, unwanted, child, for the right to have for an abortion without criminal prosecution. They appealed all the way up to the Supreme Court, where they won the case, eventually. Justice Blackmun duly acknowledged that abortion was a controversial subject, that the laws in place about it tended to be old (the Texas statute was enacted in 1854), and that medical technology and knowledge was advancing at a fast rate (Roe v. Wade, 1973). However, he held that:
State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate…[continue]
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