One of the most controversial cases in American law is Roe v Wade, a decision impacting abortion laws in America. In the case, the Supreme Court ruled that a woman has a right to have an abortion anytime in the first trimester and can have an abortion in the second trimester under stricter conditions regarding the facility the abortion is performed in and the physician who performs the procedure. The decision angered many states because they previously had laws prohibiting abortion because many people at the time found it unsafe and immoral. The court defended its decision based on the 14th amendment, which gives a woman a fundamental right to “personal, marital, familial and sexual privacy” that is “protected by the bill of rights” (Baird 34). Fundamental rights, like freedom of speech, can only be taken away if the state has a compelling argument to take the right away. If a right is not deemed fundamental, the government only has to have a “rational scheme to achieve collective good” (Tribe 10). The most common example of this is driving; a right, which the government can take away for bad eyesight or not following traffic laws (Tribe 10). Since a woman’s right to privacy is fundamental, the court had to find a compelling argument to take the right away. In the past, abortion has been illegal because the government determined that protecting a woman’s health from unsafe procedures, discouraging illicit sexual acts, and protecting prenatal life were compelling arguments that could be used to take away the right to privacy. In today’s society, the court needs to consider similar compelling arguments. The court should find protecting the potentiality of life and the damage abortion can cause to women’s physical and emotional health as compelling arguments that can be used to overturn the decision of Roe v Wade and make abortion illegal in America.
It is the government’s responsibility to protect and respect all life living within its jurisdiction. The question then becomes, is life started at conception. If life does not start at conception then a fetus cannot be considered a living being and protecting its life cannot be considered a compelling argument. If a fetus is considered a living being, then its life holds the same value as the mother’s life and all those living within the United States. Therefore, the mother’s right to privacy could not supersede the fetus’s right to live and abortion would have to be illegal. Since the scientific community is still split on when life starts, it is impossible to say definitely that life starts at conception.
The government should instead consider protecting the potentiality of life. Even if it cannot be proven that life starts at conception, fetuses should still be seen as potential life. The government even shows that it coincides with this thinking by outlawing the abortion of fetuses that can live outside the womb, called viable fetuses. The government wants to protect these viable fetuses because they have a significant chance of survival. If the government is “concerned about protecting fetuses that have a significant chance of survival, then it could be properly concerned about all fetuses after implantation” because all fetuses if left in the womb have a significant chance to survive (Colker 110). After conception, a fetus has all its chromosomes and therefore its physical appearance and traits have been determined. In only nine months, it will be born and will be considered, without question, a living being. It is the government’s responsibility to protect the potential life of all fetuses because all fetuses have a significant chance of being born and becoming living beings. Therefore, the governments should rule that protecting the potentiality of life is a compelling argument that can overturn a woman’s right to privacy.
Abortion is a complicated and dangerous procedure that should be...