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Is the Right to Abortion Unconstitutional?

By bristol0514 Mar 11, 2013 1879 Words
Is the Right to Abortion Unconstitutional?
Thomas Jefferson’s words in the Declaration of Independence concerning inalienable rights and the infamous case of Roe versus Wade have been the subject of debate for many years. Supporters of women’s right to choose abortion state that it is unconstitutional for women to not be able to decide on whether or not they want to terminate a pregnancy, while those that oppose abortion believe that ending the life of a fetus takes away the fetus’ constitutional rights. Whichever side you support can depend on your interpretation of Thomas Jefferson’s words, religious beliefs, and life experiences. Women should be able to decide whether or not to terminate a pregnancy based on how it can affect her quality of life, as a fetus that is not viable outside the womb has less rights and quality of life to consider. To support women’s rights to abortion, you must understand the hierarchy of inalienable rights, the impact on both the mother and the fetus, and what is meant by “person” in the Fourteenth Amendment. Inalienable rights are those rights that every human being is entitled to that cannot be taken away by the Congress, a court, or a President. Also, a person cannot legally surrender one of these rights. In terms of inalienable rights, there is conflict on the subject of abortion. While both the mother and the fetus have inalienable rights, which right outweighs the other? David Stevens has referred to this as the Hierarchy of Inalienable Rights. Does the woman’s “right to choose” (her liberty right) trump the fetus’ right to be born (right to life)? (Stevens) A woman’s reproductive right is part of her liberty rights. She has the right to consider how bringing a human being into the world would affect her life. No matter what her reasons may be for deciding it is not the best time to have a child, it is her right to liberty to choose. The law cannot force you to support another life, be it a fetus, or someone else, without taking away your inalienable rights. Judith Thomson explains this best: “You wake up in the morning and find yourself back to back in bed with an unconscious violinist, a famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist's circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, ‘Look, we're sorry the Society of Music Lovers did this to you—we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But never mind, it's only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.’ Is it morally incumbent on you to accede to this situation? No doubt it would be nice of you if you did, a great kindness. But do you have to accede to it? (Thomson)” One may argue that the more basic right trumps the less basic right. You have to have life in order to enjoy liberty, making life the more basic right. (Stevens) In this argument, the fetus has more right than the mother, because of his or her right to life. The reason that the fetus has rights is because it is a person from the time of conception, and killing a person is wrong. The loss of one’s life deprives one of all the experiences, activities, projects, and enjoyments that would have otherwise constituted one’s future. Therefore, killing someone is wrong, primarily because the killing inflicts (one of) the greatest possible losses on a victim (Marquis). It is impossible to force a woman to continue to carry a fetus against her will without taking away her inalienable rights. While some may see that the fetus from conception has inalienable rights, it cannot be enforced unless the fetus was able to be removed from the womb and be viable. While it is true that killing is considered immoral, that doesn’t make it okay to take away the rights of women without considering taking away rights of other people for other various reasons. Whether a pregnancy is planned, wanted, not planned, or not wanted, changes a woman’s life drastically. A woman should not be forced to change things in her life she is not ready for due to the introduction of a child. A child should also not be brought into this world without the parent(s) it needs to nurture and care for it. In Roe V. Wade, the Supreme Court recognized that the decision to have a child is unique to every woman and her life circumstances, and is therefore a personal decision (O'Connor 5). “The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation (O'Connor 5).” One study shows that children of unwanted and mistimed pregnancies do not have the same opportunities than those of planned pregnancies. It also states that children of unwanted pregnancies have less of a bond with their mothers (Baydar) The other side of this could argue that the unborn child did not have any fault in the unwanted pregnancy. The child should have a chance to be born and live as a normal person. Abortion does not always work and can lead to a baby being born with permanent medical issues due to the failed attempt to kill it. Some babies are born with Cerebral Palsy due to the failed abortion at seven months (Jessen). This is not fair to the child to have to live with issues that would otherwise not be present had the mother not sought to abort the fetus. With medical technology today, it is less likely that an abortion would not be complete. The laws also prohibit an abortion after the first trimester to decrease the chances a fetus would survive an abortion. While not impossible, it is less likely. The affects on a woman who is forced to carry a child, however, has greater consequences. Mental and physical consequences are a risk for both the child and mother of an unwanted pregnancy. In the Fourteenth Amendment it states that all persons “born or naturalized” in the United States are citizens. Each time the term “person” is stated, it is done in a way that the “person” must already be born for it to apply. Nothing in the constitution refers to the “unborn”. If the Constitution does not recognize the unborn as having rights, how can it be considered a person? In “A Defense to Abortion” Judith Thomson writes:

“It is concluded that the fetus is, or anyway that we had better say it is, a person from the moment of conception. But this conclusion does not follow. Similar things might be said about the development of an acorn into an oak tree, and it does not follow that acorns are oak trees, or that we had better say they are" (Thomson). Her perspective is that the fetus cannot simply be called a human being or “person” simply because it has the potential to be one. If a fetus is not yet considered a person, then it cannot possibly possess inalienable rights under the Constitution of the United States of America. This gives woman’s right to choice back to her without debate. One could argue though, that simply because the fetus has the potential to be a human being, it is a person, and life begins at conception. Once conceived it is believed that aborting, or killing, the fetus is the same as killing any other person. You are taking away a potential future the child would have. Therefore, the fetus should have the same rights as a person born. Just because the fetus cannot live without the help of the mother (or caregiver) does not make it less a person. Would you consider a small child or handicap person not a “person” because they depend on someone to take care of them? The mother has been born and considered a person, and already has rights under the constitution that cannot be taken away. Under law the fetus is not considered a person and not the rights as a person that is already born is. If the fetus were to be given the same right to live as a person born already, that would open up many issues in the constitution. Where would it end? A line has to be drawn somewhere. That line for abortion is drawn when the fetus becomes viable outside the womb, or the “quickening” as it has been called for many years before. In conclusion, I believe that the constitution allows for the rights of women to choose to terminate a pregnancy or not. It is the woman’s choice whether or not she thinks it is morally correct to have an abortion, not the state. Making abortion a legal decision, does not force any woman into anything. Making abortion illegal, however, forces the woman to give up her inalienable rights. These rights are given up to a fetus, which legally has no rights under the constitution. The argument that a fetus should have more rights than a mother is absurd. This statement alone contradicts itself by stating that the fetus has inalienable rights that should be protected, you are denying the mother hers. A fetus cannot be considered a person under constitution until it is born. The decision of Roe V. Wade has followed the guidelines of what Jefferson wrote in the Fourteenth Amendment. Although you may not find abortion moral, the fact remains that it would be against the United States Constitution to make it illegal.

Works Cited
Baydar, N. Consequences for Children of their Birth Planning Status. Seattle, WA, Nov-Dec 1995. <>. Jessen, Gianna. The Origins and Scope of Roe v. Wade Constitution Subcommittee of the House Judiciary Committee. 22 April 1996. Marquis, Don. "Why Abortion is Immoral." Journal of Philosophy (1986). O'Connor, Karen. "The Consegquences of Roe V. Wade and Doe V.Bolton." 23 June 2005. Stevens, David. "The Hierarchy of Inalienable Rights." March/April 2006. Thomson, Judith Jarvis. "A Defense to Abortion." Philosophy and Public Affairs 1:1 (1971).

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