Abortion History Question

[Abigail]

Mark,

I really appreciate your willingness and effort to look at all sides of an issue! And I agree it is a very difficult issue, not at all black and white.

I feel compelled to add, as a woman and a mother, I think it is the rare woman who lightly makes a decision to have an abortion. A friend of mine recently posted an incident on his blog about his grandmother. She had 5 children and the family was living in serious poverty. She became pregnant with a 6th child and knew she would not be able to care for another one. They were already dealing with choices between paying bills and eating food, and struggling to pay for healthcare costs for their family. Naturally, in her day, abortion was not legal. She opted to have an illegal abortion and died from complications at the age of 30.

Now, in reading this, you have to keep in mind that was a MARRIED woman with 5 children. I would imagine she loved those children and could have loved a 6th child as well. Additionally, in her day, women did not usually work outside the home (and how could you while raising 5 kids?). Birth control was not yet legal in every state (I don't know whether it was or not where she lived). Women were to submit to their husbands and were still, to a degree, treated as property. Therefore, one cannot assume she recklessly and carelessly got pregnant again.

I recognize circumstances are somewhat different today, in terms of the availability of birth control, etc. But even birth control is not always a guarantee, even when used properly. Likewise, even today in the day of Roe v Wade, there are poverty stricken women who cannot afford an abortion. Yes, there are those who will take "charity cases". However, poverty stricken women are often very poorly educated and may not have the knowledge or the resources to find those who would help them.

Food for thought.

Edited January 26, 2006 by Abigail

[Galen]

here's the thing Mark, I would imagine that there are probably at least a few instances where a woman was denied a medically necessary abortion pre Roe v Wade. But finding it is going to be very difficult.

For one thing, the era we are discussing was not one where things like sexuality were openly discussed. An abortion, necessary or by choice, was even less talked about. In addition, the most likely candidate to be denied a medically necessary abortion would be a woman living in poverty.

I am not entirely clear on what point you are trying to make here, but if the point is that for the most part, medically necessary abortions have been allowed even before Roe v Wade, you would be correct.

I agree with each point in the above.

Having lived in other nations, I have seen where many people just dont document things and statistics are not available.

100 years ago, few American deaths were well documented, so even guessing why someone died is anyone's guess. People dont know, people dont want to discuss the topic, nor write down their family 'shame' for outsiders to read about.

[oenophile]

OK, it's been over 30 years now but I seem to recall that Roe turned on the woman's right of privacy rather than the question of medical necessity of the procedure. The issue of medically indicated abortion is moot in this landmark decision. If anyone can find anything in the text of Roe that indicates otherwise, please feel free to counter. As I said, it's been over 30 years.

It may come as a surprise to some that the right of privacy is NOT found enumerated in the Bill of Rights. It wasn't until 1965 in Griswold v. Connecticut which struck down a state law outlawing the pill that the general right of privacy was developed by Justice William O. Douglas. Douglas writing for the majority, expounded the penumbra doctrine that held the explicit enumerated rights in the Bill of Rights, i.e. protections against unreasonable searches and seizures (4th Amendment), self incrimination (5th Amendment) etc, cast their penumbra or shadow so as to create zones of privacy that taken together can be generalized as a protected right of privacy.

In his blistering dissent in Griswold, Justice Hugo L. Black, who up to this time had been embraced by civil libertarians for his unwavering belief that when the Constitution said that "Congress shall make no law..." it meant that "Congress shall NO law", held that the Court had stepped into dangerous territory and had violated the Constitution's separation of powers by "discovering" a new right not found in the text of the Constitution.

To pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights and other parts of the Constitution is one thing; to invalidate statutes because of application of "natural law" deemed to be above and undefined by the Constitution is another. "In the one instance, courts proceeding within clearly marked constitutional boundaries seek to execute policies written into the Constitution: in the other, they roam at will in the limitless area of their own beliefs as to reasonableness...."

In Roe, Justice Blackmon relied upon this general right of privacy developed in Griswold as

precedent to support his reasoning. Roe holds that the question of a woman's right to choose to terminate her pregnancy falls well within the protected zones of privacy as developed in [/i]Griswold. Since Roe every Supreme Court appointee with the exception of Bork (who was rejected) has affirmed a Constitutional guarantee of privacy.

Edited January 28, 2006 by oenophile

[Radar OReilly]

Hi Mark,

Can you email me? I have lost your email address.

ror

[markomalley]

Wino,

Nice input.

I think the two most telling paragraphs out of the entire Roe v Wade decision are these:

A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development.

If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then be guaranteed specifically by the Amendment.

The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

......

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

What I would find interesting is to examine this in light of facts and law that have developed on both the above points 33 years hence. (I think about the development of ivf, cloning, dramatically lowered dates of fetal viability, and case law, such as Scott Peterson, etc.)