ABORTION

Abortion

Abortion

This paper is based on a fictional case study regarding abortion that was heard in a local London Court.

A Brief History

As a social problem, abortion in the United States, as elsewhere, is only marginally related to variations in the incidence of abortion. During the past century and a half, women's reproductive practices, including abortion, have attracted the attention of a wide range of social actors, including medical professionals, politicians, religious groups, legal experts, scientists, women's rights organizations, and various other groups and individuals taking an active interest in the issue. These various groups approach the issue of abortion from different vantage points, identify different aspects of abortion as problematic, pursue different understandings of the causes and consequences of abortion (for the women who have them as well as for society at large), and propose different kinds of solutions. As a result, abortion has long occupied a contentious position in the sociopolitical landscape, uneasily situated in the intersection of medicine, women's rights, and morality.

A pregnant single woman (Jane) brought a class action challenging the constitutionality of the London criminal abortion laws which outlawed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two County abortion prosecutions pending against him, was permitted to intervene.

A childless married couple (the John), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. This last case was dismissed as something that the Court could not rule on because no specific damages could be demonstrated.

Priliminary Arrangements

The court issued its decision on January 22, 2009, with a 7 to 2 majority vote in favor of McCorvey. Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of Doe v. Bolton. The Jane Court deemed abortion a fundamental right under the United Kingdom Law, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. Although abortion is still considered a fundamental right, subsequent cases, notably Planned Parenthood v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart have affected the legal standard.

Mediator's Introduction

The opinion of the Jane Court, written by Justice Harry Blackmun, declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon County action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Douglas, in his concurring opinion from the companion case Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights." Thus, the Jane majority rested its opinion squarely on the Constitution's due process clause.

The majority opinion is organized into twelve sections preceded by a brief preface; the first ...