Roe v. Wade: Ethical Position

Roe v. Wade: Ethical Position Argument

The Decision:

In 1973, the United States Supreme Court heard the case of "Jane Roe" filed in 1970 on behalf of an unidentified woman against District Attorney Henry Wade, then representing the state of Texas. By the time the appeal from district court was entertained by the Supreme Court, the case was actually moot, by virtue of the fact that Roe had already given birth. However, under a doctrine first articulated by the Court more than 60 years earlier, the Court heard the case because the issue was one "capable of repetition yet evading review" (Hall, 1992), reasoning that rejection for mootness would amount to bar against any cases brought by pregnant women, since human gestation was always likely to be shorter than the appeal process to the Court.

The Roe Court decided against the state of Texas, invalidating state penal laws against abortion by a 7 -2 margin. The central point of the landmark decision was that there is a constitutional right to abortion as an element of personal privacy under due process guaranteed under those freedoms specifically left to the people under the Constitution. The Roe decision is considered part of a series of privacy cases that included Griswold V. Connecticut, which established that a "penumbra" of privacy emanated from the Constitution (Miller, 1988).

The Roe decision distinguished three "trimesters" of human gestation, outlining different rules and rights of pregnant women depending on the specific trimester at issue in any particular case. According to those standards, a constitutional right to abortion applied to pregnancy throughout the first trimester of pregnancy; the state maintained a qualified right to regulate abortion reasonably during the second trimester provided they were not contrary to the woman's health; and a less restrictive right to limit abortions during the third trimester, provided they allowed abortions deemed necessary for the woman's health by medical standards (Abrams & Buckner, 1989).

Since Roe, abortion has continually been argued in subsequent cases over state laws requiring waiting periods and notification of spouses and/or parents, where minors are involved. So-called "Pro-Life" groups lobby strongly for laws designed to chip away at Roe, and the next conservative majority in the Supreme Court could very well overturn

Roe, returning to state legislatures the right to criminalize all abortion not required for medically emergent reasons. If that were to happen, women in some states would once again have to choose between traveling to the nearest state where the procedure was legal and the back-alley abortions common in the 19th century, with all their associated risks and complications, in addition to the prospect of criminal prosecution (Reiman, 1999).

There are two main arguments against abortion, one of which is grounded in constitutional principles of liberty and self-determination in religious matters; the other is based on the rights (both ethical and those defined by law) of the fetus to protection by the state under the established definition of due process.

Legal Argument Supporting the Roe Decision:

One of the main principles upon which the U.S. Constitution was founded is the fundamental separation of Church and State. Centuries under British rule and social oppression under color of authority by the English Church left the Founding Fathers determined not to structure the new government of the independent states that incorporated religious influences on civil law. Inspired by that concept as well as the companion belief that religious determination should be a private matter not subject to governmental regulation or prescription, the First Amendment to the U.S. Constitution specifically sets forth religious freedom and self-determination.

The logical origin of the antiabortion position lies in the religious belief that human life (and therefore, the human "soul," supposedly in the "image of God") begins at the very instant of conception, without reference to the degree of development of the fetus. For the same reason, the Catholic Church also considers "spilling seed" through masturbation to be a sin, even without the issue of any fertilized ovum. This position is patently unconstitutional, because it infuses religious beliefs into the rule of law.

Nevertheless, there is one possible objection to abortion rights that is grounded in constitutional principles.

The Due Process Clause of the Constitution extends Fourth Amendment protection of "life and liberty" to a growing fetus at some point between being merely a fertilized human ovum with the potential to develop further and being a living person entitled to full constitutional rights and protections under U.S. law. The Roe Court defined the stage of gestation where the external (to the womb) viability of the fetus entitled it to the protection of law as the third trimester (Hall, 1992).

Certainly, if a newborn baby is entitled to legal protection, then so is a fetus a day, week, and a month before delivery. The only difficulty is identifying the appropriate stage of gestation where medical ethicists define life apart from religious presuppositions.

Modern medical technology is better capable of doing so by reference to specific biological development and neural processes, but in objective principle, the distinction of viability" introduced by the Roe Court makes logical sense.

Ethical Argument Supporting the Roe Decision:

By far, the most relevant basis for evaluating the moral argument on abortion centers on the issue of viability, except that instead of focusing on the survivability of the fetus outside the womb, it emphasizes the ability of the fetus to sense discomfort and pain, and the sufficient degree of development to support the basic perceptual functions that constitute human consciousness.

Strictly objective ethical concern would militate against causing physical pain, irrespective of whether or not a fetus was biologically developed enough to exist outside the womb; on the other hand, the mere fact that a fetus is capable of being sustained through intensive medical intervention required in all instances of substantially premature delivery would not necessarily give rise to a right to that support.

Admittedly, the idea that an organism's capability of perceiving physical discomfort or pain entitles it to protection is not a belief capable of being proved or disproved in a logical sense. Rather, it is suggested simply by the principles of human compassion and empathy. The concern against causing pain is an objective moral principle that needs no basis in religion or law. What is less clear is how that concept applies differently to human beings than to other sentient living beings equally capable of experiencing discomfort and pain.

To the extent that the ability to feel pain grants an automatic 'right" to be free from pain caused by others, animals capable of perceiving pain should also be entitled to moral concern. In fact, in many ways, even non-humans are protected to some degree by laws against animal cruelty and from being killed, even though the distinction between species entitled to protection and those not similarly entitled more often reflects cultural norms than any objective standards. Generally, we are more protective of the "rights" of animals that appeal to us and those that form relationships with us even as we hunt or boil other species alive for consumption. Objectively, the ethical concern with causing unnecessary pain does not require that the pain be experienced by a human being, so viability" of a fetus is irrelevant to moral rights of this nature (Abrams & Buckner, 1989).