Ss. Cyril and Methodius University

Iustinianus Primus Faculty of Law

Civil liberties

Women’s right to an abortion

Branka Markovic

Skopje 2011

Introduction

American political culture consists of beliefs in democracy, property, religion, individualism but

most of all liberty. For the purpose of this paper we will discuss the aspect of liberty, specifically

civil liberty and the woman’s right to an abortion.

As it is popularly known, civil liberties, which is another name for individual rights, are rights

that are not given to us by the government but are inherent in us as human beings. As such they

are protected in the Constitution, the Bill of Rights etc. Since not all rights are explicitly

mentioned in the Constitution the Ninth Amendment states that “The enumeration in the

Constitution, of certain rights, shall not be construed to deny or disparage others retained by the

people”1 which gives us the method to identify new rights. Some of the most momentous civil

liberties decisions of the past four decades have been base on a right that is not even explicitly

guaranteed in the Constitution, the right to privacy2, a right which is identified by the previously

mentioned method. Among other the women’s right to abortion is and should be considered

trough the individual’s right to privacy. Another source from which to derive the woman’s right

to an abortion is the right to liberty and free will.

Before we further discuss this issue we must acknowledge the controversy and resistance around

this issue. For decades the federal government criminalized the distribution and usage of birth

control. As late as early 1960s, 28 states still prohibited the use of contraceptive devices.3 Even

though such decisions were fought in court no progress was made. In 1965 in Griswald v.

Connecticut the right to privacy granted a decision which invalidated the state’s law that

prohibited distribution of contraceptive devices. The final resolution to the issue of woman’s

right to an abortion came later in Roe v. Wade in 1973.

1 The USA Constitution - http://www.usconstitution.net/const.html#Am92 J.J. Coleman, K.M. Goldstein, W.G. Howell, “Understanding American Politics and Government”, Longman,2008, p. 1723 J.J. Coleman, K.M. Goldstein, W.G. Howell, “Understanding American Politics and Government”, Longman,2008, p. 172

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Roe v. Wade

The debate on the issue of abortion has been present for decades. Both pro- choice and pro-life

arguments are compelling the pro-choice being that the prohibition of abortion is unduly

burdening the woman’s liberty and as such is unconstitutional and the pro-life being similar to

the Texas state claim in the case of Roe v. Wade “that the restriction is justified on the ground

that the fetus is a person and thus has a life interest that is protected under the due process clause

of the Fourteenth amendment.”4

For many decades abortion was strictly prohibited and criminalized but as time passed the states

slowly adjusted to the shift in public opinion and the right to an abortion was somewhat granted

but strictly regulated by the states and an option only in cases of incest, rape, when the mother’s

health was in danger or in the likelihood of birth defects.

The Roe v. Wade case of 1973 reviews the Texas state law prohibiting abortion except in the

cases where the mother’s life is in danger. Having the previously mentioned claim of the Texas

state the court ruled that even though “the fetus may be a life in some religions or some moral

codes the majority concluded that it was not so in constitutional sense.5 The claim of the Texas

state was not compelling enough to infringe the mother’s freedom. Even though the court ruled

in the favor of the pro-choice option the liberty to choose an abortion is not without boundaries.

To settle the concerns of the state for the potential life the verdict came with a restriction on the

right of the mother to choose an abortion. The mother may freely choose to terminate the

pregnancy in the first trimester restricting the state from interfering unless the procedure

endangers the mother’s health, for the second trimester the mother’s choice is largely

unrestricted but with the fact that the fetus becomes viable at the seventh month the state’s claim

becomes compelling at that point and with that the state may prohibit abortion.

4 D.E. Lively, R. L. Weaver, “Contemporary Supreme Court Cases : Landmark decisions since Roe v. Wade”, Greenwood Press, 2006, p. 2175 D.E. Lively, R. L. Weaver, “Contemporary Supreme Court Cases : Landmark decisions since Roe v. Wade”, Greenwood Press, 2006, p. 217

Skopje 2011

Many judges and cases later on review the ruling of the above discussed case but the final

decisions do not infringe the outcome of the Roe v. Wade case. Many states have found a way to

somewhat limit the women’s right to an abortion by adapting their laws and making it more

difficult to exercise that right. For example the state of Virginia passed a law that could require

abortion providers follow unnecessary and burdensome regulations in an effort to make it more

difficult for them to provide care to women who need it.6 North Carolina passed a law preventing

Planned Parenthood to receive funds for family planning and teen pregnancy prevention

programs.7 New Hampshire passed a law that that forces teen to notify her parents when she

needs an abortion even if that puts her life and health at risk.8 Ohio passed a bill that restricts

public servant’s ability to get health care coverage for abortion.9 Arizona passes a law that

punishes non-profits, like rape crisis centers or domestic violence shelters, if they refer a woman

to a health care provider for a needed abortion. 10

6 American Civil Liberties Union - http://www.aclu.org/maps/2011-abortion-access-under-attack-state-legislatures7 ibid8 ibid9 ibid10 ibid

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Discussion

The American society is based on the promises of the Declaration of Independence and the

Constitution and these promises are the source of the confirmation of the rights and liberties of

the American people. When the government rises the question of the constitutionality of the

women’s right to an abortion inevitably overreaches into the sanctity of the liberty and privacy of

the American woman. The Declaration of independence clearly states that all men are created

equal, that they are endowed by their Creator with certain unalienable rights, that among these

are the Life, Liberty and the pursuit of Happiness. One may argue that at that time the men did

not have the general meaning of men kind or that the right to life extends to the fetus and with

that limits the liberty of the mother to choose to terminate the pregnancy.

First of all the argument that men did not reference to a woman is absurd since the women were

also obliged by the laws of the time. Second the fetus is not considered alive and has no chance

of survival in the first 23 weeks of pregnancy the right to life does not include the mere mater of

which the fetus is composed of. Which means that women have the right to terminate the

pregnancy since the claims made to the right of life of the fetus bare no factual merit?

One big issue at hand is the question Does anyone but the woman in question have the right to

interfere in private mater concerning her life when that women has the ability to rationally make

decisions for herself? Even though the father has a right to be considered ultimately the woman

has the final say in the decision since she is to only one that can carry the fetus to term, a process

that does not just influence her physically but also mentally.

Finally every women is different and the circumstances following the life and pregnancy of

women vary from case to case, and as I mentioned the issue is a matter of privacy and the

government has no right to interfere in private decisions regarding health, physical or mental,

and the free will of any person not just the woman.

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Conclusion

As previously discussed before the pro choice and the pro life options have compelling

arguments but to what extent these arguments can be taken into real consideration and applied in

real life is an issue of personal opinion. No government has a right to deny the women the right

to make rational choices concerning their life and since medical research has proved that the

fetus has no viable chances of survival in the first 23 weeks of the pregnancy the choice in that

period whether or not to terminate the pregnancy should be left to the woman. After that period

the claim that fetus is alive is a fact and even though the survival rate does not guarantee the

survival of the fetus abortion should only be considered when is a matter of health concern.

The father’s opinion is to be considered but finally the choice is up to the women since she

carries the fetus to term and her life and health are at stake and not the ones of the father. The

consequences of such decisions on the relationship between the individuals in question and the

relationship itself is also a private matter which bears no factual merit to the question of whether

or not the woman’s right is constitutional or not.

The issue of morality of this matter is also a personal opinion, what is moral to one person may

not be to another so a general rule of such an issue may not be imposed. It is clear that denying

the freedom of choice in this matter and intruding in the privacy of women is a violation of their

constitutional rights and the government must not allow itself to continue the practice of such

violation.

Skopje 2011