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Nathaniel Hawthorne wrote about adultery in The Scarlet Letter, but the "A" word these days is abortion. People often break off friendships, ostracize each other, and are intolerant of others having different opinions on this subject. This is sad, because we can all learn from each other. The rest of this abortion essay is divided into two parts. First is a general discussion mentioning some legal issues.
Then the legal issues will be discussed in more detail. Be aware that some of the following material is personal opinion, although you will also find a lot of information (including links). General Discussion For thousands of years of western civilization, abortion was generally illegal after "quickening" (the point at about four months into pregnancy when a baby kicks). This tradition can be traced back at least to the Ancient Greeks.
In his book "Politics, " Aristotle said that "the line between lawful and unlawful abortion will be marked by the fact of having sensation and being alive. " [ 1 ] Aristotle thus contended that the right to life generally accrues earlier than birth and irrespective of whether the baby is strong enough to survive after birth (i. e. viability). This broad standard of Aristotle leaves plenty of room for special rules and exceptions in order to allow some late abortions for the life of the mother, rape, incest, grave fetal deformity, maiming of the mother, et cetera. [ 2 ] Quickening usually occurs at least two months before viability. Many people, including myself, advocate drawing a line between lawful and unlawful abortion no later than four months after conception but no earlier than the end of the embryonic stage. This happens to be what the vast majority of people generally believes. [ 3 ] Because the abortion pill RU 486 is only effective on an embryo up until the ninth week of pregnancy, I have loudly supported its legalization for many years.
If we are to face facts, we must acknowledge that the human experience does not suddenly begin the moment each of us is born. All medical experience shows that a fetus has sensation (e. g. taste, hearing, touch, smell, and sight). More importantly, a fetus can think, and has been proven to remember things (like the voice of its mother) after it is born. We are all human beings, and as such are not property.
Here are the numbers: over a million abortions are reported each year in the United States, and of these more than 12 % occur after the thirteenth week. In other words, there are about 150, 000 second trimester abortions in the United States each year. Common reasons for these delays in terminating a pregnancy include denial of pregnancy, menstrual irregularity preceding pregnancy, physician delay, ambivalence towards termination, major or minor fetal abnormality, and unexpected threats to maternal health or comfort. It is sadly true that many women have been oppressed, forced into pregnancy, forced out of pregnancy, beaten, pushed around, and generally subjugated in a vast number of instances over the millennia. But does that entitle any woman to do the same thing to the most helpless and innocent among us? If a father encourages or assists a mother to have an unjustifiably late abortion, then the father ought to be penalized as much as the mother for committing the crime, and perhaps more severely given that he will not suffer the abortion procedure itself.
It is simply wrong to assert that abortion would be totally legal if men as well as women got pregnant; the fact is that many states today punish men who kill a pre-viability fetus with the same penalties given to murderers. Should a woman be physically restrained so she will bring her advanced pregnancy to the point of viability? No, not in my opinion. Penalties can be imposed on such a woman even after allowing her to get a safe pre-viability abortion. In other words, it is possible to legalize the attempt but outlaw the thing attempted. This may sound perverse, but the law does things like this all the time.
For example, in a "tort" action, you normally can't sue someone for trying to do something hurtful, and can only sue for damages after the harm is done. Forced pregnancy is not something to which any civilized society should aspire, and doctors who perform pre-viability abortions generally ought to have immunity from punishment. If a pregnancy is biologically healthy, is well past the first trimester, and was voluntarily conceived, then there should be some sort of abortion penalty absent extraordinary circumstances. Hasn't the mother chosen to run risks and allowed the fetus to reach this stage?
And shouldn't women be treated like any responsible person, and asked to live with some of their choices instead of trying to reverse them whenever it suits their fancy? I'm referring to a small minority of women who would do these awful things. But should that small minority of women, who would treat a fetus as they would treat a bag of trash, be immune from the law in the name of safeguarding other women from the oft-mentioned "slippery slope"? Women have the right to vote, thank goodness, and women are not going to lose their rights and power as long as they vote. Speaking of which, here's a hyperlink full of quotes from great women who won for all women the right to vote. People like Elizabeth Cady Stanton and Susan B.
Anthony strongly believed that abortion, generally speaking, is a crime. As a personal matter, I believe that it is dangerous to tamper with the chain of human life and possibly snuff out a human soul even with respect to an embryo, but I want people to make their own choices and would not try to impose my view on anyone else with respect to embryos. In contrast, the medical evidence is vastly more persuasive that a second trimester abortion actually has a thinking and feeling human being on the receiving end of the brutality. This issue has a wide spectrum of nuances and variations, and is not black and white.
Nor is this is a fun issue to deal with, by any stretch of the imagination. Nevertheless, reasonable, moderate people should try to deal with this issue rather than duck it, or else the extremists win. Discussion of Legal Issues Being a lawyer, I am especially aware that this abortion issue has a lot of legal ramifications, in addition to the difficult moral questions. Consider the 1973 case of Roe v.
Wade. Whether you agree with Roe v. Wade or not, I think we can all agree that Justice Blackmun did not do a 100 % perfect job for his own cause or for the cause of eventual reconciliation. First some legal history.
For millennia, from Aristotle thru the English common law, thru the abortion laws of the nineteenth century, and thru most of the twentieth century, our legal tradition has made abortion consistently illegal after quickening. [ 4 ] This may seem like an ethnocentric statement, but it would be very difficult to operate our legal system based upon more than one chain of precedent (imagine the chaos that would ensue if the 19 th century court decisions of Persia, Greece, or Italy carried as much weight in the United States today as the 19 th century court decisions of the U. S. Supreme Court). Sometimes, in our legal tradition, abortion was actively prevented before the fact, and sometimes a penalty was instead imposed after the fact. It would not have been legally outrageous for a state legislature in 1973 to have made post-quickening abortions legal, but it surely was outrageous for a court of law to have done so against the obvious wishes of the people who wrote the Constitution and laws that the Roe Court relied upon in 1973. A basic tenet of our legal system is that "the intention of the lawgiver is the law" as Lincoln said in his first inaugural address.
People can disagree about what the lawmakers intended, and they can disagree about how much flexibility the lawmakers intended for us to have in interpreting the laws and the Constitution. But it should be manifestly obvious that courts of law must not be free to make up their own definitions for words used in the Constitution if those new definitions fly in the face of everything we know about the Framers of the Constitution. Unfortunately, the Roe Court departed dramatically from this bedrock principle of the intention of the lawgiver being the law, and we are all the poorer for it. As discussed below, the Roe Court completely redefined the words "due process" beyond anything recognizable to the people who wrote and amended the Constitution, and the Roe Court furthermore held the common law unconstitutional as regards abortion. George Washington said it well in his Farewell Address, when he said this: "If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.
But let there be no changes by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. " It may well be that the Eighth Amendment protects a woman from being forced to continue a pregnancy against her will (see Planned Parenthood v. Danforth). The Eighth Amendment, as you may know, prohibits the federal government from inflicting cruel and unusual punishment. Instead of taking this legal avenue, the Court in Roe v.
Wade took a different and much more dubious route. What the Roe Court did was to say that the "due process clause" of the Fourteenth Amendment (the 14 th Amendment went into force in 1868) forbids a state from penalizing a woman for aborting a nonviable fetus. Incidentally, the Fifth Amendment says the federal government may not violate due process, whereas the Fourteenth Amendment says that the state governments may not do so; both the Fifth and Fourteenth Amendments prohibit government from depriving people of "life, liberty, or property, without due process of law. " Aside from the significant fact that the America of 1868 clearly would never have intended that the Fourteenth Amendment produce such a result, based on the abortion laws then in force, there are various other cogent reasons for questioning the wisdom of Roe v. Wade.
As a matter of plain English, it is evident that due "process" is supposed to be a guarantee of procedural rights rather than substantive rights. Sir Edward Coke, a great 17 th century English commentator on the law, wrote that "due process of law" means the same thing as "the law of the land" in Magna Carta. [ 5 ] Thus, the due process guarantees of the Fifth and Fourteenth Amendments are aimed at prohibiting deprivation of life, liberty, or property without authority from the "law of the land. " When a legislature enacts the "law of the land, " the due process requirement is not violated. But, when a court or other government official deprives someone of life, liberty, or property without authority from the "law of the land" then due process is violated. This is the essence of due process; due process simply refers to the process which is due to each of us according to the law of the land, and due process includes access to courts of justice when there is controversy as to what the law means. There is every reason to believe that the people who wrote the 14 th Amendment intended that "due process" have the same definition as the same words in the Fifth Amendment. Likewise, there is every reason to believe that the people who wrote the Fifth Amendment intended that "due process of law" be synonymous with "the law of the land" in the original (unamended) Constitution.
Article VI of the Constitution explicitly says that the Constitution and the laws of the United States made in pursuance thereof "shall be the supreme law of the land, " and this quoted phrase has never limited the types of laws that Congress can make. [ 6 ] Thus, the Constitution's guarantees of due process are satisfied whenever someone is deprived of life, liberty, or property by a process conforming to laws passed by Congress and conforming to the Constitution itself. This "due process of law" principle is now fashionably known as "procedural due process, " in order to make room for that most awkward creature called "substantive due process" which is directly aimed at controlling Congress and the state legislatures. The great Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis were once persuaded that the Constitution's due process requirements are inapplicable to substantive law, but they later changed their minds (see Whitney v. California).
Holmes and Brandeis subsequently admitted to "more than anxiety" about that change of mind (see Baldwin v. Missouri). The great Supreme Court Justice Hugo Black had the same view of "due process" and "law of the land" to which I subscribe, and Justice Black never accepted the concept of substantive due process (see Black's dissent in In Re Winship). Even if you deny that substantive due process is an oxymoron, at least there should be some logical limit to this notion so that it will not be a blank check for the courts to interpret however they see fit. Judges, after all, are often unelected, serve for life, and are susceptible to the lust for power and greatness like anyone else (present company excepted, of course).
One logical limit to substantive due process, initiated early in the twentieth century, was that it extends only so far as to bar states from violating enumerated rights already protected from federal intrusion by the Bill of Rights (by itself, the Bill of Rights does not restrict the states, as discussed in the 1833 case of Barron v. Baltimore). An even better and much more straightforward way to apply the Bill of Rights to the states would be by applying the "privileges and immunities" clause of the 14 th amendment, as the framers of the 14 th Amendment intended would happen. [ 7 ] Justice Black was one of several justices who espoused the limited view of the 14 th amendment, and he persuasively opposed the idea that the 14 th amendment covers substantive issues not addressed by the Bill of Rights or by Congress. [ 8 ] Justice Black well knew the abuses to which the oxymoronic doctrine of substantive due process could be put, and had been put. The substantive due process doctrine was first applied by the U. S.
Supreme Court in the infamous Dred Scott decision. That opinion was probably the most heinous opinion ever issued by the high court, doing great...
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Research essay sample on Legal Issues And Arguments Regarding Abortion
