May 17, 2019
The Gov. of Alabama Kay Ivey just signed into law a bill that could punish doctors with life in prison for performing abortion. The bill, which passed 25-6, only allows exceptions when there is a serious health risk to the unborn child’s mother and if the unborn child has a serious anomaly.
In all other situations, the law makes abortion illegal including cases of rape and incest, two concerning factors making the law overtly aggressive. The law is a conservative policy, designed against a woman’s right to choose, a possible attempt to relitigate Roe v. Wade, the landmark Supreme Court ruling, that made abortion legal in America, except in cases where there is a compelling state’s interests in preserving the life of the unborn.
Because this law would criminalize abortion in the case of rape and incest, it is fair to call it an outrageous and constitutional attack on women. While it is incontrovertible that protecting the life of the unborn is paramount to every civilized society, we live in the era where every attempt to defend a woman’s right to choose is considered not being prolife. Those with such views forget that it is possible to be prolife and still believe there are difficult instances when a woman should have the right to choose, rape and incest being among those extreme situations.
It is fair to include that in Roe v. Wade, The Supreme Court, 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. But considering those points, it remains unclear if the state of Alabama in passing such a bill can prove that its interests, other than being political, are compelling enough to warrant such restrictions on abortion.
The Supreme Court’s opinion in Roe v. Wade states that in protecting the interests of a potential life, 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. At such point, state regulations to the effect would have both logical and biological justification.
By refusing to exempt rape and incest, Alabama’s abortion law seems overbroad and unconstitutional as an infringement on the rights of women to choose for the following reasons: In a situation of pregnancy due to rape, a woman should not be made to relive the horror of carrying to term a child she was forced to conceive. Think of a situation where the victim of rape is a girl child, should that child be made to carry a fetus to term, when it was never her choice to conceive so young?
In such case of a pregnant minor or statutory rape, it is better described as a conception without consent. A raped minor does not deserve the title or responsibility of a mother when she is not ready or physically prepared to be one. If based on medical judgment it is determined there is no risk of injury to her life, it would be right to terminate the fetus after informed consent by a physician.
In most states the rights of parenthood is established through biology and other means accepted by law. The right of a rapist as the father of a child does not diminish because the child was a result of rape he perpetrated. The fact that a rapist was punished with prison time for his crime does not mean he cannot return after serving time to claim the rights to his rape child.
In fact, public policy would agree such a child should not be a ward of state but a responsibility of the father. The question is should a rape victim be made to relive the horror of her victimization, by demanding child support from the man who raped her, after the rapist has petitioned the court for his rights to parenthood? Or should the woman bear the financial burden alone as a single mom, if she could not deal with the embarrassment of seeking child support from the father of a child, she was forced by state law to carry to term?
In the case of incest, it would be improper and a taboo to have a girl carry to term a pregnancy that is a result of sexual abuse by her own father. Likewise, it is morally wrong to force a girl by state law to carry a child fathered by her own brother through incest. The Supreme Court did not leave rape and incest out of consideration, when it deferred to the states the right to legislate on compelling interests in abortion cases.
Alabama’ new abortion law is political and a provocation of Roe v. Wade. If it serves any purpose, the goal is to force lawsuits that would make the Supreme Court revisit the landmark decision and possibly overturn Roe v. Wade.
The Supreme Court with his decision in Roe v. Wade exonerate the right of the Physician to administer his medical treatment, based on sound judgment until it burdens state compelling interests. Only then can the state exercise its power of intervention according to justifiable necessity. Alabama is yet to demonstrate any overriding interests with its new law. It is unlikely the Supreme Court rules in its favor thereby, overturning its own precedent.
Adeyemi Oshunrinade is an expert in general law, foreign relations and the United Nations. He is the author of ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment,’ ‘Criminal Law-Homicide’ and ‘SAVING LOVE’ available on Amazon. Follow on Twitter @san0670.
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