Ss.

Cyril and Methodius University

Iustinianus Primus Faculty of Law

Civil liberties

Womens 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 womans 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
people1 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 womens right to abortion is and should be considered
trough the individuals right to privacy. Another source from which to derive the womans 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 states law that
prohibited distribution of contraceptive devices. The final resolution to the issue of womans
right to an abortion came later in Roe v. Wade in 1973.

The USA Constitution - http://www.usconstitution.net/const.html#Am9

J.J. Coleman, K.M. Goldstein, W.G. Howell, Understanding American Politics and
Government, Longman,2008, p. 172
3
J.J. Coleman, K.M. Goldstein, W.G. Howell, Understanding American Politics and
Government, Longman,2008, p. 172
2

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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 womans 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 mothers
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 mothers 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 mothers 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 mothers health, for the second trimester the mothers choice is largely unrestricted
but with the fact that the fetus becomes viable at the seventh month the states claim becomes
compelling at that point and with that the state may prohibit abortion.

D.E. Lively, R. L. Weaver, Contemporary Supreme Court Cases : Landmark decisions since
Roe v. Wade, Greenwood Press, 2006, p. 217
5
D.E. Lively, R. L. Weaver, Contemporary Supreme Court Cases : Landmark decisions since
Roe v. Wade, Greenwood Press, 2006, p. 217

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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 womens 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 servants 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

American Civil Liberties Union - http://www.aclu.org/maps/2011-abortion-access-underattack-state-legislatures

7
ibid
8
ibid
9
ibid
10
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
womens 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 fathers 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 womans 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