The complexity of one’s constitutional right to privacy often makes for a tedious mockery of the judicial system. All things that are private are not within the confines or control of the state. Yet, who is to say what is and is not private? Abortion appears to fall squarely between the two extremes of the privacy issue. Either a woman’s body is entirely her own, or it is entirely the state’s. This statement assumes that in the beginning a woman was the keeper of her own person: neither man nor God held dominion over her body. Second, this statement assumes that as long as the institution of the state has existed, it has sought some control over a woman’s body. Abortion, like no other topic, has exacerbated the division between state-controlled matters and private matters. Can a mean be found that does not violate a woman’s right to personal choice and the state’s charge to protect its citizens?
Three court cases exemplify the diverse nature of the abortion debate: Griswold v. Connecticut, Roe v. Wade, and Webster v. Reproductive Health Services. Each case in context deals closely with the adjudication of the right to privacy by the courts. The Fourteenth Amendment of the U.S. Constitution (the Due Process Clause) is the link that brings all of these cases together. In the Supreme Court’s ruling in Griswold v. Connecticut, Justice Douglas announced that the case, which dealt with the dissemination of contraceptive information, “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” (391 U.S. 145). This pronouncement by Douglas set the tone for what has developed into an arduous and multifaceted debate throughout the nation – is the right to seek an abortion a private and “fundamental constitutional guarantee?”
Abortion has always been a very public issue despite its private subject matter. The Supreme Court’s ruling on abortion is in line with a history that spans centuries and shrouds every aspect of human conduct – from misconceptions regarding women to the precious nature of human life. Sex, the backbone to the abortion issue, is political. Americans are especially infatuated with all aspects of the sexual spectrum because of a long and complex history of sexual repression and freedom. Throughout the entirety of American history one can observe that women are told their respective place does not involve the public circle. Men took on the burden of deliberating and legislating away many of the fundamental issues women have long held to be intrinsically linked to their person. Among these issues lies abortion, which has grown to involve more than just a fetus and a woman. Abortion is politics, sex, controversy, science, mystery, religion, and control.
Before the 1800’s abortion laws brought over from England and covered under common law practices were “interpreted by the local courts of the new American states” (Mohr 1978). The traditionally held breakpoint between a simple abortion procedure and an offensive and prosecutable crime is quickening. Quickening is “the first perception of fetal movement by the pregnant woman herself” (Mohr 1978). “Before quickening, actions that had the effect of terminating what turned out to have been an early pregnancy were not considered criminal under the common law in effect in England and the United States in 1800” (Mohr 1978). Religion and antiquity continue to be major contributing forces behind the rules regarding abortion. In Roe v. Wade the Supreme Court relied upon fetal viability to set up feasible limitations regarding the state’s “legitimate interest in potential life” (410 U.S. 113). A fetus is not viable outside of the womb until the respiratory and circulatory systems are sufficiently developed to handle oxygen. This level of fetal development does not occur until well after the first trimester date set by Roe v. Wade. However, Webster v. Reproductive Health Services, which followed the Roe v. Wade decision, limits the time span to twenty weeks. After a period of twenty weeks, the states may forbid an abortion because, as the court argues, there is “no limitation on a State’s authority to make a value judgment favoring child-birth over abortion” (492, U.S. 490).
