TODD AKIN: REVISITING ROE v. WADE, Constitutionality and Right of Women to Abortion


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BY ADEYEMI OSHUNRINADE

In a recent interview, Representative Todd Akin, the GOP nominee for Senate in Missouri expressed his opposition to abortion rights even in the case of rape; he said that victims of “legitimate rape” have unnamed biological defenses that inhibit pregnancy. According to him when it comes to the issue of legitimate rape “you optimize life,” “the punishment should be on the rapist not the child;” and that “if it is a legitimate rape, the female body has ways to try to shut that whole thing down.”

The Republican went to the extreme of saying that even in a situation when the natural protection against unwanted pregnancy fail, abortion should not be a legal remedy for the victim of rape. To be clear, my position and personal opinion on the issue of abortion is pro-life; however, I strongly believe there are legally sound and genuine circumstances when a woman should be allowed to exercise her right to choose but before I go further, I will like us to step back a little and revisit a landmark decision by the U.S. Supreme Court, that set the foundation for the right of women to choose in America and that forms the basis for how some nations have addressed the issue of abortion.

In Roe v. Wade, Jane Roe a single woman sought a declaratory judgment against Texas statutes that make it a crime for a woman to “procure an abortion, or to attempt one, except with respect to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Roe claimed the Texas criminal abortion statutes were unconstitutional on their face and asked for an injunction restraining the state from enforcing the statutes. She claimed she was unmarried and pregnant, she wished to terminate the pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions;” that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction to secure a legal abortion under safe conditions. (See Roe v. Wade, 410 U.S. 113, 93 S. Ct 705, 35 L. Ed. 2d 143 (1973)).

The District Court on review declared the Texas statutes to be unconstitutionally vague saying that the statutes constituted an overbroad infringement of Roe’s Ninth Amendment rights; however, the court refused the injunction on abstention. Historically, the justification for criminal abortion laws, have been based on three arguments: first, that such laws discourage illicit sexual conduct and therefore necessary to put a stop to it; second, that abortion was a hazardous medical procedure which sometimes can be dangerous and put the life of the mother at risk; and thirdly, the compelling state interest in protecting prenatal life, that the new human life present at the moment of conception must be protected.

On the first argument, the court found that Texas failed to advance its justification for the laws based on the particular case and as a result, the argument could not be taken seriously. On the second argument, the court found that current technology and modern medical developments have made it possible to reduce mortality rates for women undergoing early abortions, and where the procedure is legal, the mortality rates appear to be as low as or lower than the rates for normal childbirth. As a result, the compelling state interest in protecting the woman from hazardous abortion procedure has largely disappeared.

On the final argument, the court conceded that in assessing the state’s interest, recognition may be given to the claim that as long as a potential life is at stake, the state may exercise its interest to protect life beyond that of the pregnant woman.
In its opinion, the court emphasized the detriment that the state would impose upon a pregnant woman by denying her the right to choose such as; direct harm medically diagnosable even in early pregnancy, maternity or additional offspring may force upon the woman a distressful life and future, she may suffer from psychological harm including mental and physical health issues which may accompany child care and other concerns associated with the unwanted child.

The court however, disagree that a woman’s right is absolute; that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses; to this the court did not subscribe. While the court recognized the woman’s right to privacy, it agreed that some state regulation in areas protected by that right is appropriate; that a state may properly assert important interests in safeguarding the health, medical standard and protection of a potential life. Therefore, at some point in pregnancy, the interests would be compelling enough to sustain regulation of the factors that govern the abortion decision.

In its conclusion, the court reiterated that the right of personal privacy includes the right to choose or abortion decision; however, the right is not unqualified and must be considered against important state interest in regulation. On the issue of when a state can express its interest in the health of the mother, the “compelling” point would be at the end of the first trimester, when based on established medical fact mortality in abortion may be less than mortality in normal childbirth. Therefore, from after the end of the first trimester (end of first three months of pregnancy), a state may regulate abortion to the extent that it relates to the preservation and protection of maternal health.

With respect to the state interest in protecting a potential life, the court concluded the “compelling” point would be at viability, when the fetus is presumed to be capable of a meaningful life outside the womb of the mother. State regulation to such effect would have both logical and biological justifications. On a final note, the court declared Texas statutes to be overbroad for making no distinction between abortions performed early in pregnancy and those done later; thereby, limiting to a single reason “saving” the mother’s life, the legal justification for the procedure. Based on such, the statute failed constitutional scrutiny.

Representative Todd Akin may have misspoken by saying abortion should not be an option in the case of rape; nonetheless, the issue of abortion has long been settled by the Supreme Court in Roe v. Wade, and though it continues to generate a firestorm and debates among Democrats and Republicans, it is a sensitive issue politicians try to avoid as we get closer to the election.

My position though pro-life supports the right of a woman to choose in legally sound circumstances such as: (1) when the life of the pregnant woman is at risk and when based on medical judgment she may lose her life if the pregnancy is not terminated; (2) in a situation of pregnancy due to rape, I do not think a woman should be made to relive her horror by carrying to term a child she was victimized to conceive; (3) when based on sound medical judgment that the fetus if delivered, would not live a productive life that is, if due to deformities and health issues it is reasonable not to carry the child to term; (4) in the case of a pregnant minor or statutory rape, this is pregnancy without consent; a raped minor does not deserve the title of a mother when she is not ready to be one and if it is determined she is better off without the pregnancy, she should have the choice. In all other cases, a pregnant woman should carry the child to term since medical advancement, use of condoms and contraception, have made it possible to protect against unwanted pregnancy.

The Supreme Court with its decision in Roe v. Wade, exonerate the right of the physician to administer his medical treatment, based on sound judgment up to the point where it burdens compelling state interests; only then can the state exercise its power of intervention, based on justifiable and convincible necessity. The Supreme Court has made abortion a medical decision and basic responsibility of the attending physician, who must exercise his professional and medical expertise in such cases.

Dr. Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests,’ ‘Murder of Diplomacy’ and ‘Constitutional Law-First Amendment.’ Follow on Twitter @san0670

Image from www. Washingtonpost.com

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Categories: Constitutional Law

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