Policy Debate: You Decide


Abortion and the Right to Privacy

Although the word “privacy” does not appear in the Bill of Rights, the courts have agreed that such a fundamental right exists. They disagree, however, about exactly from where the protection arises and about how far it should be applied. Nowhere is this disagreement more pronounced than on the issue of abortion.

Since its 1973 landmark ruling in Roe v. Wade, the Supreme Court has repeatedly found that the right to privacy protects the right of a woman to end a pregnancy via abortion, subject to some court-approved restrictions. Abortion opponents, of course, have rejected the premise of Roe that privacy protects an act they consider murder. For example, members of Congress who oppose abortion have succeeded in restricting federal Medicaid funding for abortions. Today’s more conservative Supreme Court has reaffirmed what they have labeled the “central holding of Roe,”[1] that a pregnant woman has a right to obtain a legal abortion prior to when the fetus becomes viable, but the Court has allowed states to impose restrictions such as parental notification for minors and 24-hour waiting periods for those seeking abortions.

Supporters of privacy-based protection for abortion argue that, as a matter of law and tradition, a developing fetus cannot be accorded the same legal status as the woman carrying a fetus. If privacy means anything, it must extend to the right of a woman to decide, at least during the early months of pregnancy, whether or not to have an abortion. For the government to require women to carry most or all pregnancies to term represents extreme government intrusion into the innately personal decision over procreation. The principle of individual liberty must allow women to make such fundamental decisions themselves.

Further, supporters of abortion rights argue that the idea that all abortions are murder means that a fertilized egg does and should possess the same traits as a full-term baby, an idea that is rejected by medical science, most Americans, and many religions. Abortion laws properly reflect these differences. Finally, supporters argue, the Constitution addresses the issue by noting that citizenship, and therefore the rights stemming from it, begins at birth.

Opponents of abortion argue that the relative differences observed in fetal development do not change the fact that, by genetic makeup, even a fertilized egg is a person. The absence of birth does not, in and of itself, mean that a fetus is without rights. Even if the Constitution’s framers had all agreed that the Bill of Rights protected the right to privacy, there is no reason to believe that they would have countenanced its extension to abortion. Furthermore, to say that such issues are purely a matter of personal choice is to turn a blind eye to the sort of evil that government has every right to regulate or prohibit. And although pregnancy is a developmental process for the fetus, it is precisely because there is no magic, agreed-on point at which a fetus becomes a person that the fetus must be protected as a person at all stages.

Opponents of abortion believe that women who become pregnant, whether by accident or intent, assume a special obligation to the innocent life they carry. Although some who oppose abortions are willing to allow exceptions for cases of rape or incest, such cases account for only a tiny percentage of all abortions. Legal abortion, opponents argue, is harmful in other respects. It demeans respect for life by allowing, even encouraging, abortion as a means of birth control. Above all, the right of a fetus to live must supersede the privacy rights, however defined, of pregnant women.

[1] Planned Parenthood v. Casey (1992)

If Roe v. Wade were reversed and states made abortion a crime, how would protection of the fetus, beginning with the fertilized egg, be implemented? If a “miscarriage” was induced by abortion, who should be charged with violating the law? The woman who obtained the abortion? The medical personnel who performed it? With what should they be charged? Murder? Criminal negligence? Manslaughter?
Thousands of childless couples engage in great effort and endure delays and disappointments in adopting a child. Should government provide incentives to pregnant women to go to term so that more children are available for adoption? Why or why not?
Abortion was a major issue in electoral politics in the late twentieth century. Do you think abortion will continue to be a central issue in American elections? Why or why not?
Where do you think the question of the legal status of abortion should be resolved—in courts or legislatures? At the state or federal level? Why?

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