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Why is Abortion Legal in the United States?

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Annual March For Life Winds Through Washington DC
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Question: Why is Abortion Legal in the United States?
Answer: During the 1960s and early 1970s, U.S. states began to repeal their bans on abortion. In Roe v. Wade (1973), the U.S. Supreme Court stated that abortion bans were unconstitutional in every state, legalizing abortion throughout the United States.

For those who believe that human personhood begins during the early stages of pregnancy, the Supreme Court's decision and the state law repeals that preceded it may seem horrific, cold, and barbaric. And it is very easy to find quotes from some pro-choicers who are completely unconcerned about the bioethical dimensions of even third-trimester abortions, or who have a callous disregard for the plight of women who do not want to have abortions, but are forced to do so for economic reasons.

As a member of the pro-choice movement, I have committed to the idea that abortion should be legal. But even I have doubts, significant doubts, about where my movement is sometimes headed. As we consider the issue of abortion--and all American voters, regardless of gender or sexual orientation, have an obligation to do so--one question dominates: Why is abortion legal in the first place?

In the case of Roe v. Wade, the answer boils down to one of personal rights versus legitimate government interests. The government has a legitimate interest in protecting the life of an embryo or fetus (see "Does a Fetus Have Rights?"), but embryos and fetuses do not have rights themselves unless and until it can be determined that they are human persons.

Women are, obviously, known human persons. They make up the majority of known human persons. Human persons have rights that an embryo or fetus does not have until its personhood can be established. For various reasons, the personhood of a fetus is generally understood to commence between 22 and 24 weeks. This is the point at which the neocortex develops, and it is also the earliest known point of viability--the point at which a fetus can be taken from the womb and, given the proper medical care, still have a meaningful chance of long-term survival. The government has a legitimate interest in protecting the potential rights of the fetus, but the fetus itself does not have rights prior to the viability threshold.

So the central thrust of Roe v. Wade is this: Women have the right to make decisions about their own bodies. Fetuses, prior to viability, do not have rights. Therefore, until the fetus is old enough to have rights of its own, the woman's decision to have an abortion takes precedence over the interests of the fetus. The specific right of a woman to make the decision to terminate her own pregnancy is generally classified as a privacy right implicit in the Ninth and Fourteenth Amendments, but there are other constitutional reasons why a woman has the right to terminate her pregnancy. The Fourth Amendment, for example, specifies that citizens have "the right to be secure in their persons"; the Thirteenth specifies that "{n}either slavery nor involuntary servitude ... shall exist in the United States." Even if the privacy right cited in Roe v. Wade were dismissed, there are numerous other constitutional arguments that imply a woman's right to make decisions about her own reproductive process.

If abortion were in fact homicide, then preventing homicide would constitute what the Supreme Court has historically called a "compelling state interest"--an objective so important that it overrides constitutional rights. The government may pass laws prohibiting death threats, for example, despite the First Amendment's free speech protections. But abortion can only be homicide if a fetus is known to be a person, and fetuses are not known to be persons until the point of viability.

In the unlikely event that the Supreme Court were to overturn Roe v. Wade (see "What if Roe v. Wade Were Overturned?"), it would most likely do so not by stating that fetuses are persons prior to the point of viability, but instead by stating that the Constitution does not imply a woman's right to make decisions about her own reproductive system. This reasoning would allow states to not only ban abortions, but also to mandate abortions if they so chose. The state would be given absolute authority to determine whether or not a woman will carry her pregnancy to term.

There is also some question as to whether or not a ban on abortions would actually prevent abortions. Laws criminalizing the procedure generally apply to doctors, not to women, which means that even under state laws banning abortion as a medical procedure, women would be free to terminate their pregnancies through other means--usually by taking drugs that terminate pregnancies but are intended for other purposes. In Nicaragua, where abortion is illegal, the ulcer drug misoprostol is often used for this purpose. It's inexpensive, easy to transport and conceal, and terminates the pregnancy in a manner that resembles a miscarriage--and it is one of literally hundreds of options available to women who would terminate pregnancies illegally. These options are so effective that, according to a 2007 study by the World Health Organization, abortions are just as likely to occur in countries where abortion is illegal as they are to occur in countries where abortion is not. Unfortunately, these options are also substantially more dangerous than medically-supervised abortions--resulting in an estimated 80,000 accidental deaths each year.

In short, abortion is legal for two reasons: Because women have the right to make decisions about their own reproductive systems, and because they have the power to exercise that right regardless of government policy.
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