Opening up a dialogue on Abortion Rights

Years ago, I told a friend that I was not permitted to discuss the abortion issue or the death penalty, for well obvious reasons. It is a polarizing issue — that most people look at via emotion, and not intellect. Their views are deeply ingrained and impossible to discuss openly.  Don’t worry this post is not about the death penalty. One issue at at time.  And it is prompted by a post I read on social media today that stated “We didn’t vote for Hillary and voted for Trump, to save the babies from abortion.” It’s not the first time I’ve heard this response, more than one person has stated it. And once again, I thought as I read it, don’t these folks realize that neither candidate has any say regarding this issue? It’s not an issue that the President of the US can address or even has all that much effect upon?

History has shown that it doesn’t matter what the President thinks about abortion — the most they can do is appoint judges that agree with their opinion, but those judges must be approved by the Senate, and there’s no way they can predict how any given judge will vote on the issue. The President can also veto or sign into law legislative acts/bills passed by Congress.  The President of the United States does not make laws, he does not interpret laws, those two things are not within his power. At best, all the President can do is appoint people to the Supreme Court,  and he rarely gets that opportunity.  Even when he does, he can’t control how the justices vote or what they will do.  Nor what laws Congress enacts. He can suggest laws. But not create them. And just because the Republican party has control over the branches does not mean that the members all agree. Or that the President knows what they will do. It’s a guessing game on his part, and there is no certainity or for that matter control. So in a Presidential election, the abortion issue is largely irrelevant and many Presidents have little effect on it — in Regan’s case, his appointees went the opposite direction from his own views on the topic.  George W Bush may have been the only President that had all that much influence over it — and only in regards to Partial Birth, and his views have not entirely been upheld by the courts.

Years ago, in 1985, to be exact, when I was a senior in high school, we were instructed to debate the abortion issue. Ronald Regan had recently been elected President. And he was decidedly pro-life or anti-abortion. So too was my father who told me that I should take the Pro-Life stance. So, I did. I researched the issue thoroughly, because it was a debate. Hunting for ways to win on a factual level, not a subjective or emotional one. Because again, it was a debate. I have to admit at the ripe old age of 17, I was on the fence regarding the issue.

What I discovered surprised me. For one thing, did you know that there were more abortions, specifically partial birth, and deaths prior to Roe vs. Wade and the legalization of abortion?

Estimates of the number of illegal abortions in the United States during the 1950s and 1960s range from 200,000 to 1.2 million per year. Prior to Roe v. Wade, as many as 5,000 American women died annually as a direct result of unsafe abortions.

Highly restrictive abortion laws are not associated with lower abortion rates. For example, as Guttmacher Institute explains, the abortion rate is 29 per 1,000 women of childbearing age in Africa, and 32 per 1,000 in Latin America — regions in which abortion is illegal under most circumstances in the majority of countries. The rate is 12 per 1,000 in Western Europe, where abortion is generally permitted on broad grounds.

From <a HREF=”http://www.ourbodiesourselves.org/health-info/impact-of-illegal-abortion/”&gt; Our Bodies Ourselves</a>.

Of course, I got the information the old way via the card catalogue and library research. Not to mention microfiche. The stories, gory and in detail, of the illegal, and in most cases partial birth — because many women weren’t able to do it until late in their pregnancies when it was illegal — shocked me.

I also learned from various sources that there were instances in which women were raped, or they couldn’t carry the child to term without dying, or the child would be born without any bones or severe birth defects — in short, I discovered this was not the simple issue that I thought it was. I tried my best to debate it, arguing that the life of the unbornn fetus should be honored at all costs, that life began at conception, and that abortion should not be a substitute for birth control or safe sex. But how to counter the facts that more died prior to legalization? And how to address the fact that a woman with an unwanted pregnancy is bringing a child into a world of pain? Should she be forced to carry this child? What if the child puts her life in danger? And what about the lack of reputable social services to aid the child? Not all countries or places are created equal? What about incest? What about rape?

So, torn and confused, I ran away from the issue. Not wanting to deal with it any further. But like most things we attempt to run away from, it came back like a bloody boomrange. My sophmore year of college, a dear friend who I have since lost contact, found herself pregnant at the ripe old age of 19. I will never forget how she came to me with a pregnancy test and asked what color it was — panic striken. She was a sophmore in college, who had been in a loving relationship with an airforce cadet, who was Catholic.  But he broke up with her and started dating another woman, when she discovered she was pregnant. Her own birth had been a mistake, throwing her parents lives out of sync. And everyone around her, her friends, her roommate, the guy who had crush on her — was encouraging her to get rid of it.  I remember telling her to go see a gynecologist and get an actual blood test, not to just rely on something picked up at a drug store, and to go from there. I also told her that she had options, and to think really hard about those options. Whatever she did, she would have to live with — it was her body and her choice no one else’s. And if she needed me, I would support her and help however I could, regardless of what she chose. I’d even go with her, if need be. But that there were other options – such as adoption. She told me she was afraid. She didn’t want to trap the man she’d loved, she wasn’t that kind of girl. She didn’t want to repeat her parents mistakes. Added to this stress, the school was in the process of suspending her for cheating on a math exam — it wasn’t clear that she had and she was fighting their decision.  All of this had her reeling. I took her to get a blood test.

A few days later she told me it was a false alarm, she wasn’t pregnant. And she appeared to be getting back together with her boyfriend.

Two weeks later, I found myself in her dorm room. She was drunk and sobbing. She’d locked the door and I was the only person she would let in. Wouldn’t let her boyfriend in, or her roommate. In tears, she confessed that she’d had an abortion. That no one knew. No one. And she needed me to keep her boyfriend out, because she was afraid she’d tell him and lose him. He had proposed marriage. She loved him, but she didn’t know if she could forgive herself or he’d forgive her for the abortion. Even though, she felt she made the right decision, neither was ready for a child. And it is important to state that she terminated her pregnancy well within the first two weeks or first trimester.  I kept her boyfriend out and just listened. I remember counseling her to tell him before they got married and, much later, she told me that she had. I hope so. And that he had forgiven her.  Eight months later, I watched him walk her down the aisle. My friend was a staunch conservative who voted for Regan and attended the conservative branch of the Lutheran Church. She’d been anti-abortion.

After that, I had various discussions on the topic. One friend, who was a biology major, insisted that life began at gestation, she said there was biological proof of this. But, I asked her, how can it be more than a parasite, if it is entirely dependent on the mother and cannot live separate from the mother? Yes, I know, what a horrible word – parasite. She thought so too. But she considered my argument, and said, “It’s different though — the mother had a hand in creating the child. Shouldn’t she be responsible? Wasn’t aborting skirting that responsibility?  ”

“But what if the mother was raped? ”

“Well, that’s a special circumstance.”

“Or the birth control failed, and she’s had too many children? And can’t feed them?”

“There are adoption agencies and foster care.”

“It’s not so easy to get a child to the right parents or to give it up. And what if it is a serious health issue? What if carrying a child to term could severly hurt or kill the mother? Whose life do you choose?”

She had no answers that I remember. My final question was what determines life? Or human life for that matter? At gestation, the life is merely a bunch of cells forming, there is no soul, no energy, it is just organic matter, living yes, but not embodied. As a biology major, she was uncertain. But then so was I. I found I had more questions than answers. And the answers that I had were pointing towards pro-choice. I kept thinking of those poor women like my friend, who felt desperate and alone, and without choices — who terminated — and in some cases died as a result. For like it or not, this was not a simple issue.

If I thought it would end there, I was wrong. In 1991, my second year of law school, I took a Constitutional Law course. Our assignment was to examine two supreme court judges and their decisions over a ten year period. I picked <a HREF=”http://www.biography.com/people/william-rehnquist-9454479″>Justice William Rhenquist</a> and <a HREF=”http://www.biography.com/people/sandra-day-oconnor-9426834″&gt; Justice Sandra Day O’Connor</a> – both were appointed by Republican Presidents. Rhenquist by Richard Nixon and Day O’Connor by Ronald Regan.   The decisions that I analyzed and researched were their abortion rulings. Rhenquist and O’Connor adjudicated and framed the abortion laws. Or rather fought over them, lifelong friends, they disagreed over this topic, with Rhenquist often writing the dissenting opinion. It was O’Connor who came up with the “trimester” rule. And who determined that abortions should be determined on a case by case basis, because it was impossible to do otherwise since each woman was an individual. O’Connor, it’s important to note was personally opposed to abortion, but she reviewed the constitution and determined that the privacy clause protected a woman’s right to choose what happened with her own body. But furthermore, she determined along with Justices Souter (appointed by George W. Bush) and Kennedy (another Regan appointee) that the 14th Amendment to the Constitution or Due Process Clause upheld the woman’s dominian over her own body. In the below case, <A HREF=”https://www.law.cornell.edu/supremecourt/text/505/833″>Planned Parenthood of Southern Pennsylvania vs. Casey</a>,  April 1992 – which was being decided as compared the Justice’s rulings:

JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER delivered the opinion of the Court with respect to Parts I, II, and III, concluding that:

1. Consideration of the fundamental constitutional question resolved by Roe v. Wade, 410 U.S. 113, principles of institutional integrity, and the rule of stare decisis require that Roe’s essential holding be retained [p834] and reaffirmed as to each of its three parts: (1) a recognition of a woman’s right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose pre-viability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman’s effective right to elect the procedure; (2) a confirmation of the State’s power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman’s life or health; and (3) the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. Pp. 844-869.

(a) A reexamination of the principles that define the woman’s rights and the State’s authority regarding abortions is required by the doubt this Court’s subsequent decisions have cast upon the meaning and reach of Roe’s central holding, by the fact that THE CHIEF JUSTICE would overrule Roe, and by the necessity that state and federal courts and legislatures have adequate guidance on the subject. Pp. 844-845.

(b) Roe determined that a woman’s decision to terminate her pregnancy is a “liberty” protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment. Neither the Bill of Rights nor the specific practices of States at the time of the Fourteenth Amendment’s adoption marks the outer limits of the substantive sphere of such “liberty.” Rather, the adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual’s liberty and the demands of organized society. The Court’s decisions have afforded constitutional protection to personal decisions relating to marriage, see, e.g., Loving v. Virginia, 388 U.S. 1, procreation, Skinner v. Oklahoma, 316 U.S. 535, family relationships, Prince v. Massachusetts, 321 U.S. 158, child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, and contraception, see, e.g., Griswold v. Connecticut, 381 U.S. 479, and have recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child, Eisenstadt v. Baird, 405 U.S. 438, 453. Roe’s central holding properly invoked the reasoning and tradition of these precedents. Pp. 846-853.

(c) Application of the doctrine of stare decisis confirms that Roe’s essential holding should be reaffirmed. In reexamining that holding, the Court’s judgment is informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling the holding with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling. Pp. 854-855. [p835]

The above ruling states that there is more at state than abortion here, that overruling the landmark case of Roe vs. Wade, would in turn weaken the court and judicial precedent. Also, that the 14 Amendment Due Process Clause protects our basic liberties: “The Court’s decisions have afforded constitutional protection to personal decisions relating to marriage, see, e.g., Loving v. Virginia, 388 U.S. 1, procreation, Skinner v. Oklahoma, 316 U.S. 535, family relationships, Prince v. Massachusetts, 321 U.S. 158, child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, and contraception, see, e.g., Griswold v. Connecticut, 381 U.S. 479, and have recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child, Eisenstadt v. Baird, 405 U.S. 438, 453. Roe’s central holding properly invoked the reasoning and tradition of these precedents.” [For more on this case – please see: Planned Parenthood vs. Casey – https://www.law.cornell.edu/supremecourt/text/505/833. ] This bares repeating because we tend to take these for granted, forgetting that we fought numerous wars to protect them. Over a million good people died to protect these rights, dating back to the Revolutionary War and continuing into the current War on Terrorism. What distinguishes the US from many countries and why so many wish to immigrate here — is these basic rights. We do ourselves and those who died upholding them great injury by taking them for granted.

I remember a few years back, I had a discussion with a former boss on the subway. She is a wonderful and caring person, who spends her free time saving animals. This woman has stood up for me and I respect her. I want to make this clear prior to reporting this exchange. But she  was angry, 9/11 and various other events had left her bitter, and  feeling disenfranchized, she felt we had too many rights and didn’t like people all that much.

“The Nazis had the right idea, curtail human rights. More efficient,” she told me.

“Except, here’s the problem, what if they are your rights being curtailed? That only works if you agree with the dictator in charge. What if the dictator wants to curtail your rights? And even if he or she doesn’t start out that way, they will eventually — look at the Soviet Union, China, WWII Germany, Japan and Italy.”

She had no answer to my question. The problem with liberty, is others have it too. It’s like free will, we all must have it to work. Often I think, the problem with free will is the wrong people have it — but we can’t pick and choose, to do so, means playing God, and we don’t have that right. And that is what the Justice’s are stating above.

<a Href=”http://www.pewforum.org/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/”>Rhenquist’s views were the opposite of O’Connor’s, he believed that prior laws went against the protections offered in Roe vs. Wade</a>. And countered in various superseding opinions that followed the landmark case that :

the law’s declaration that life begins at conception does not contradict Roe because the declaration is contained in the statute’s preamble and thus should have no real impact on access to abortion. The majority also held that prohibiting the use of government workers or facilities to perform abortions is acceptable because the right to an abortion established in Roe does not include the right to government assistance in obtaining one. The majority also ruled that the requirement of viability testing at 20 weeks is constitutional, although the justices offered different reasons for this ruling.

In one opinion, Chief Justice Rehnquist, joined by Justices Byron White and Anthony Kennedy, argued for dispensing with part of Roe‘s three-tiered system, the second tier of which allows only laws aimed at protecting the mother’s health. According to Rehnquist, the framework had come to resemble “a web of legal rules” rather than “constitutional doctrine.” The three justices also maintained that the state has an interest in protecting potential life before viability, making the 20-week requirement valid even if fetal viability normally occurs after 20 weeks. “We do not see why the state’s interest in protecting potential human life should come into existence only at the point of viability and should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability,” Rehnquist wrote.

Rhenquist was in effect putting the rights of a governmental entity or organization over the rights of an individual. He also was shrugging off the second trimester ruling, that stated abortions may only occur during this period to protect the mother’s health. He was in essence – nit-picking at the case law.

And once again the argument – that life begins at conception raises its head. But the definition stops there. Biologists continue to argue as to what defines “life” and whether carrying a life places an undue burden on the carrier. And how you define it is well personal. Scientists, lawyers, and philosophers have been arguing over it for centuries. But this goes back to my argument with the biology major. (See above.)

O’Connor’s judgement in Casey sought middle ground and to a degree undermined the three trimester rule. In my research of O’Connor and Rhenquist, I determined that many of their decisions were decided subjectively and not objectively, their background and views about women and religion played a role. As it does for all of us, I suspect. O’Connor seemed to realize that there were more deaths prior to Roe than after, while Rhenquist dismissed this out of hand. How much gender played a role in their views is hard to know for certain. Both Justices were from Arizona, both chosen by conservative Republican Presidents. One was male, one female. Also it should be noted that Justices Souter and Kennedy, both Republicans, and both male, sided with O’Connor.

The Partial Birth Decisions – came later, and it should be noted that it is rare that a woman has a partial birth abortion – post Roe vs. Wade. There was actually more prior to Roe. For various reason, the main one being that the procedure is dangerous and done in dire circumstances. We’ve all heard the horror stories of course. I remember one brutal tale that I heard in college, but I have no clue as to its legitmacy. Roe vs. Wade itself did not provide for partial-birth unless the life of the mother was at risk and often, the child was not viable or could not survive outside the womb without undue suffering, ie. in instances of detrimentally severe birth defects.

That said, the pro-life advocates have a point, the procedure is gruesome.

The term “partial-birth abortion” refers to a procedure known in the medical community as “dilation and extraction” (D&X), which involves terminating a pregnancy by partially extracting a fetus from a uterus, then collapsing its skull and removing its brain. This procedure is usually performed late in the second trimester, between 20 and 24 weeks into a pregnancy.

And the morality circumspect — especially in cases where the woman’s life is not in danger and the child is viable.And “in 2003, Congress passed and President George W. Bush signed the Federal Partial Birth Abortion Ban Act, the first federal law banning the D&X procedure. Abortion rights advocates immediately challenged the law, and lower courts, citing Stenberg, struck it down.” (Note Congress passed it, the President just signed it into law. The President has veto power and signage power.But his appointed judges got it stricken down.)

It was then left to the courts to interpret and either uphold or reverse. And in 2007, the court upheld the ban, reversing course from it’s earlier ruling against a Nebraska law banning Partial-Birth abortions. What is interesting about this reversal, is the Justice who wrote the majority opinion was Justice Kennedy, and he’d been among the Justice’s who struck down the Nebraska law banning partial birth abortions. Kennedy is a wild card. He was also nominated by Ronald Regan and had previously upheld Roe vs. Wade.

Emboldened by this ruling, many states stepped up to the plate and legislated laws against partial birth insisting on a ultrasound prior to termination. Federal courts have either struck down or upheld the laws. So, the issue will most likely be revisited by the courts, hence the reason the issue keeps coming up in Presidential and Congressional elections and Supreme Court appointments.

Partial-birth is not healthy for the mother, and dangerous, most veer from it. And it is rather easy now to terminate within the first trimester with the pill, so doing so at the end of the second trimester or during the third is rare, and not recommended or even permitted at the moment. But as previously noted, the current election for many turned on this issue, as did the selection of a Supreme Court Justice, because this issue is due to be revisited by the courts. So it is worth considering and thinking hard about from both sides.

That said, there are instances in which the moral issues regarding Partial Birth abortions become rather foggy. For example, what if the mother will die and the child cannot survive? Do you wait, and let them both die, or save the mother? Or how about a 12 or 14 year old, raped by her father or brother, who doesn’t know she’s pregnant until 20-24 weeks in, due you terminate? Or what about a baby who isn’t viable and will suffer, most likely die immediately after birth, since the child did not develop any bones or has severe birth defects?

As you can see this is not a black and white or rather, a clear cut issue. Nor one that should determine the outcome of a Presidental election, particularly when it remains unclear what an elected official or his appointees will do. Again, see both the Regan and Bush administrations — where Justices appointed by both Presidents ruled against the Presidents’ personal view on the topic.  Nor is this an issue in which either side should be dismissed out of hand. It’s a complicated one.

While, I personally, could not imagine having an abortion. The idea appals me. Partial -birth sounds…insanely painful and horrific. I can understand why others do and more often than not have no other choice. I’ve met them, I’ve felt their pain. I’ve watched stories about them, and read stories about them. I am empathetic to their plight.

I’m not sure we have the right to tell anyone what to do with their own bodies. Nor do I think we can honestly predict what we would do in their place. My grandmother used to have a saying, “you can’t know what another feels until you’ve walked a mile or two in their moccassins.” I think she’s right. We can’t know.

I also think that this is an extremely slippery slope that we should not slide too far down. For doing so, has serious consequences to our own privacy and control over our bodies. We control little in this world outside of ourselves, our bodies and our choices. I don’t think that abortion can be equated with murder or killing a living independent organism that exists outside of us. I think we need to think hard how we evaluate these things, and try to think outside the boxes our culture provides.

That said, there are limits of course, and perhaps a common ground or compromise can be reached? Where the partial birth is only granted or legitimized in extreme circumstances as provided under Roe vs. Wade, such as incest, death of the mother, and severe birth defects? It is an question worth pondering and futher consideration. And not one that should be dismissed. Considering the number of times this issue has arisen and the rage on both sides, I think an honest and open dialogue is required and hopefully a meeting of minds, assuming of course such a thing is possible, can be obtained. At least I hope so. Otherwise this issue will never be resolved and will continue to plague us for another few centuries, assuming we survive that long.

Thank you for listening.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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