Texas State Abortion Law example essay topic

A fifteen-year old girl from southern Texas sits on a hard wooden table, alone. She is wearing nothing and quite nervous. After a moment, the? doctor? comes in and instructs her to lie down and open her legs. He then thrusts a sharp instrument inside her vagina and jaggedly scrapes the lining of her uterus and pulls the resulting pieces out of her vagina. The? pieces? are chunks of a first trimester fetus. It looks roughly like pieces of uncooked hamburger, raw and red.

The person who performed this procedure was unlicensed and untrained. It was highly likely that fragments of the instruments that he used for the procedure would be left inside this young girl's vaginal cavity. There was a chance that this young girl would be one of the estimated 8,179 abortion related deaths in 1936 in the United States (Gorney 23). Throughout modern American history, there have been many controversial subjects that the US government has had to handle and settle pertaining disputes. One such issue has been the woman's right to abortion. There are many legal and moral issues involved in the arguments.

Abortion had been performed both legally and illegally for centuries (both in the United States and Overseas), now the United States government has the responsibility of deciding if a woman has the right to choose whether or not she is ready to become a mother. Funk & Wag nall's Dictionary defines abortion as? the expulsion of a fetus prematurely; miscarriage? (2). The miscarriage can be either naturally occurring or induced. From the time that the United States of America was formed up until the landmark case of Roe vs. Wade in the 1970?'s, abortion has been an illegal operation. It was obtained in back alleys through midwives and untrained? doctors? as well as a few (very cautious) private physicians (Gorney 22).

There were a variety of methods to induce an abortion and each abortionist would be likely to be in possession of many (if not all) of the objects on a list that was published in the journals of American Medicine in the late 1960?'s: Lysol douche Hexyl douche Bleach douche Green soap and glycerin douche Powdered kitchen mustard douche Hydrogen peroxide douche Potassium permanganate corrosive tablets Intrauterine installation of kerosene and vinegar Gauze packing Artist's paintbrush Curtain rod Slippery Elm stick Garden hose Rubber tube Polyethylene tube Glass cocktail stirrer Ear syringe Telephone wire Copper wire Coat hanger (wire) Nut pick Pencil Cotton swabs Clothespin Knitting needle Rubber catheter Woven silk catheter Catheter with style tte Chopsticks Bicycle pump and tube Football pump and plastic straw Plastic tube with soap solution Gramophone needle Bulb syringe Castor oil by mouth Quinine by mouth Ergot by mouth Humphries No. 11 tablets by mouth Turpentine by mouth Each of these items leaves tell-tale signs inside the uterus that could later be identified by doctors who examined the ladies after an abortion or by the examiner in the case of the expiration of a back alley abortion victim (Gorney 21-22). For example: if air was pumped into the uterus to stimulate an abortion or miscarriage, then the larger blood vessels in the uterus would be left distended. Turpentine, either ingested or introduced through douche would leave the victim's urine smelling slightly like violets. If the patient complained of lower abdominal tenderness, it was likely that she had forced soap or detergent into her cervix.

Another tactic that women would use would be to press potassium permanganate tablets into her uterus to stimulate bleeding. In many cases, the doctor would think that a miscarriage was already underway and would surgically abort the pregnancy. However the wound could not be sutured because the walls of her vaginal cavity would be so severely corroded. Also, any doctor of the time would be able to identify the cervical bruising where metal instruments had been clamped (Gorney 22). Abortion has a long history, both in the United States and in Europe. American abortion law originates in English common law.

It is commonly believed that abortion before quickening was not considered a crime. However, recent research has revealed that abortion in England before quickening was actually considered a criminal offense. (Quickening was defined as the first time that a woman feels the fetus move in the womb (Risen and Thomas 6). This occurs between the sixteenth and eighteenth weeks of pregnancy). Infanticide and abortion were both infractions of the law, but instead of being punished by common law, the church (Catholic) court handled most cases for practical purposes.

Throughout the seventeenth, eighteenth, and early into the nineteenth centuries, criminal prosecution for abortion was rare. The British view of abortion carried over into the newly forming country of the United States. Although English Common Law tradition held, there were no laws specifically banning abortion in the United States until 1821, when the first state outlawed it. Connecticut was the first to make abortion an illegal, punishable act. The legislation was created to resemble a similar act of British Parliament, passed in 1803 (7). The new legislation banned the usage of any poisonous substance for use of inducing abortion (also known as a spontaneous miscarriage) after the period of quickening.

Although Connecticut was the first, many states would follow the lead and outlaw induced abortion: Missouri in 1825, Illinois in 1827, and New York in 1828. But by 1841, only ten American states and one United Stated territory had enacted anti-abortion laws (Risen and Thomas 8). None of these laws were specifically addressed towards abortion. Instead, they were minor provisions and revisions to already existing state criminal statutes. In most cases, the new revisions would allow the courts to not only try the woman who attempted an abortion, but also the physician or midwife that served as the abortionist. One such case was that of Maria Aldrich in 1843.

She had sought out an abortion in Boston and was found dead in a Boston boardinghouse days later due to complications arisen from the procedure. The courts tried both the man who had impregnated the woman and the abortionist for murder. The charges were dropped because quickening could not be proven; only five days later, a state legislator requested that a House committee look into the possibility of? making the procuring of an abortion a misdemeanor? (8). Within the next seven days, the afore mentioned House committee had drafted the first bill in United States history pertaining exclusively to abortion. Although this bill was passed, the new law was very rarely invoked.

At this time, the American Medical Association (AMA-1847) was formed. The AMA launched a campaign to raise new restrictions for abortion. Although this campaign was considered strictly anti-abortion, it was anything but. The physicians were merely worried about the steadily climbing number of women seeking out abortions in back alleys and through midwives. Due to this, the doctors were worried about their jobs. Despite the fact that the campaign was run for the wrong reason (money), it was poised to help many women to procure abortions safely (8).

The doctors had a natural stance in this battle and were competing for clients, thus? highlighting the abuses and dangers associated with abortion helped encourage the standardization and professionalization of medical practice? (8). The doctors had plenty of evidence to present in favor of anti-abortion legislation. The number and frequency of deaths due to abortion and attempted abortion were staggering; these combined with the suggested methods of abortion and the marking found inside a woman's uterus during a pelvic examination or an autopsy was certainly proof enough that abortion was a very dangerous procedure. The trend continued and evolved. Between 1840 and 1870, abortion rates continued to climb steadily and physicians sought out legislation to? outlaw induced abortion at any state of pregnancy?

(Risen and Thomas 9). Additionally, by 1860, more than a dozen states had enacted legislation restricting abortion after the stage of quickening. Despite the limitations, the purpose of the laws was to protect the woman. The question of when life truly began had not yet been raised.

In 1873, Congress passed the Comstock Act. The act was named for Anthony Comstock, an anti-obscenity activist. The new legislation made it a? federal offense to sell or give away an article or medicine that would prevent conception or cause an abortion? (9). After the Comstock Act had passed, Anthony Comstock set out to enforce it harshly. Between the years of 1873 and 1877, he assertively prosecuted abortionists; using their owns ads as evidence against them (9).

Towards the end of the nineteenth century, restrictions on abortions were tightened further. During this time, the distinctions between and penalties for abortion before and after quickening virtually disappeared from the law. The legislation enacted during this period of time remained on the books with little exception throughout much of the twentieth century. They may have stayed in effect even longer if not for the Roe vs. Wade case of the 1970's. However, there were any events leading up to this monumental, precedent setting court case. The abortion war really had no steam until the 1950's and 1960's, with the conception of Planned Parenthood.

The organization was created by Margaret Sanger. In 1921, she founded the American Birth Control league, followed by the Birth Control Clinical Research Bureau in 1923. Six years later, Sanger's two organizations merged into the Birth Control Federation of America. Later, this organization was renamed the Planned Parenthood Federation of America (10). Contrary to popular belief, Sanger was not a radical, or even an advocate for the reform of abortion laws.

But Planned Parenthood spawned and supported a new generation of abortion rights activists. The trail had been blazed for abortion legislation reform in the United States. In 1942, Dr. Alan Guttmacher became one of the first doctors to articulate the need for liberalization of abortion laws. Guttmacher supported abortion if the woman's health was at risk-regardless of whether the pregnancy was the cause of the health concern. It did not state how her health had to be at risk, or exactly what that risk had to be.

This would eventually grow into one of the largest controversies involved in the abortion wars. Momentum gained for the abortion cause with a landmark conference named? Abortion in the United States? in 1955 (11). This meeting was sponsored by Planned Parenthood and organized by Mary Caulderone, the group's medical director. The goal of this conference was impossible: to measure the severity of the problem of illegal abortion in the States. According to a survey of the sex habits of Americans, conducted by Alfred Kinsey, there were between two hundred thousand and 1.2 million illegal abortions performed annually.

However, the data collected was deemed inconclusive. This information can be supported by the very existence of many other figures collected. For example: Frederick J. Taussig estimated that 681,600 abortions were illegally induced each year. Despite the uncertainty in these numbers, the evidence was clear: America's abortion laws were routinely being completely disregarded and the resulting illegal, unsafe abortions were rapidly becoming a public health hazard (11). The Planned Parenthood conference also requested that the American Law Institute (ALI) and legal community join together to study the possibility and plausibility of reform as well as draw up model legislation to be enacted by the states. The creation of this model was overseen by Guttmacher.

The legislation created by ALI would come to be known as the? ALI Plan.? The new law stated that abortion was legal if, and only if, ? two doctors agreed it was necessary to preserve the life or health of the woman and in cases of rape, incest, or severe fatal abnormalities? (11). The ALI Plan was the initial spark of reform. The next vital part in American abortion history was the 1962 case of Sherri C hessen Finkbine in Arizona.

Finkbine was pregnant with her fifth child and taking prescribed tranquilizers. When she ran out of the pills from her doctor, she began to take tranquilizers that her husband had brought home from Europe, over the following weeks, Finkbine consumed thirty to forty of these pills. She later read an article about the harmful side effects of a drug that could be found in tranquilizers: thalidomide. She discovered that a high percentage of pregnant women who had taken this drug had also given birth to severely deformed babies, many of which survived for only a matter of months. The tranquilizers that Finkbine had consumed contained the highest dosage of thalidomide allowed, her doctor immediately suggested the termination of the pregnancy. The only catch was that Arizona statutes at that time only allowed abortions if the pregnancy was detrimental to the health of the mother (Gorney 49 and Risen and Thomas 12).

However, the termination of this particular pregnancy would be of no consequence to the health of Finkbine. When Finkbine and her doctor requested an abortion due to the fact that? a severely deformed child would be an undue hardship on a family with four other small children to care for? (13). The Arizona Supreme Court dismissed the petition within only days because the Judge could find no legal grounds on which he could grant the abortion. He said that from what he could see, the only basis of the case was that Finkbine was unwilling to bear a disfigured child (13).

After having visas for Japan denied, the Finkbine sought out an abortion in Sweden. Even there, Sherri Finkbine would have to prove that she was mentally ill in order to be granted an abortion (Gorney 50). After the abortion, Finkbine learned that the thirteen week-old fetus had been so severely malformed that it would not have survived to term and if it did, would have not lived more than a few weeks. The Finkbine story, combined with the ALI Plan provided sufficient ammunition for the reform of state and national laws.

On April 25, 1967, Colorado passed the first of many reform laws. On May 8, North Carolina followed suit. A month later, the AMA voted to provide full support of the ALI Plan. Then, California passed the California bill. This piece of legislature was enacted by pro-choicer, Ronald Reagan.

In the next two years, seven more states would follow the lead that Colorado and North Carolina had provided: Arkansas, Delaware, Georgia, Kansas, Maryland, New Mexico, and Oregon (Risen and Thomas 14). In the late 1960's, women's rights activists began to draft more legislation that was very similar in nature to the ALI Plan. The new proposals aimed for fundamental change in abortion law and, eventually, full legalization of abortion. In 1967, Betty Friedan convinced her fellow members of NOW (National Organization for Women) to endorse abortion for the first time. In 1969, on the last day of the first National Conference on Abortion Laws, many of the people in attendance came together to form the National Association for Repeal of Abortion Laws (NARAL).

The mission of this new committee was to focus on the states that had not yet passed reform laws (Risen and Thomas 15). By 1970, twelve states had moved to liberalize their laws due to the pushing and prodding of the AMA, NARAL, and NOW. The first state to pass legislation supporting abortion was Hawaii in March of 1970. The new law? virtually repealed abortion restrictions? (15). Hawaii's was quickly followed by New York and Alaska, then by Washington.

When the abortion restrictions were loosened, women fled by the thousands to the states where they could legally attain an abortion. New York City recorded nearly 200,000 abortions (in the 1970) just after the repeal was passed in July. Of these, more than two-thirds of them were provided to non-residents of the state. Most of the early pro-choice legislation reform allowed abortions only to protect the mental health of the woman. The vagueness of this phrasing would soon become a favorite loophole of abortion advocates (16). Until the late 1960's, the only real opposition to the reform of abortion laws was the Catholic Church.

Earlier, it had been recognized by the reformists that the church would oppose any compromise on the abortion laws. In the eyes of the religion, the only good abortion was no abortion at all. Throughout the 1960's and 1970's, pro-life church groups, such as the National Right-to-Life Committee, would seem to appear almost immediately after the passage of new pro-choice legislation. Due to this fact, it is no wonder that pre-Roe vs. Wade; the only support behind anti-abortion lobbying efforts was the Roman Catholic Church (19).

In the 1970's, the single largest article of legislation regarding abortion in the history of the United States was fought out in the courtroom. The case was Roe vs. Wade. It began when Sarah Rage, later Weddington, a young female attorney who had recently graduated from law school, crossed the Mexican border with her soon-to-be husband to procure an illegal abortion; she survived, and with another attorney (Linda Coffee), went on the prowl for a plaintiff to challenge the Texas abortion law, which had remained unchanged since 1854 (24). At the same time, Norma McCorvey was realizing that she was pregnant for the third time. She was 21 years old, ? a street smart high-school dropout, a drug user, a lesbian, and the victim of abusive men and neglectful parents? (19).

McCorvey had already put one child up for adoption and had another forcibly taken from her by her mother. It was obvious that she could not have this third baby. McCorvey called a doctor and attempted to explain that she wanted an abortion, but had no idea of the word's existence, let alone its meaning. She later discovered that abortions were illegal in Texas, and after a visit to a former abortion clinic-consulted an attorney at the suggestion of her physician. The attorney, McCluskey, convinced McCorvey to contact Sarah Weddington and Linda Coffee. Their first meeting occurred in February of 1970 at a small pizza parlor in Dallas (McCorvey 74).

Norma poured her entire life story out to the young attorneys. When she realized that she was quickly driving them away, she lied to recapture their attention. She had virtually no interest in the lawsuit; she wanted an abortion. She told Weddington and Coffee that she had been raped, the result: she was pregnant.

Although Texas had no exceptions to the law for victims of this heinous crime, this point could only make the case stronger (yet this information was never entered into evidence during the hearing). And so Norma McCorvey became the infamous Jane Roe (Risen and Thomas 26). Roe vs. Wade was fought primarily on the grounds that the Texas state abortion law was unconstitutional simply because the right to abortion fell under the Fourteenth Amendment right to privacy. On March 3, 1970, Coffee filed McCorvey's affidavit against Dallas district attorney Henry Wade. In short, it stated that McCorvey had already borne two children, was poor and could not afford to travel to obtain a legal abortion and feared for her life when considering an illegal procedure (27).?

On June 17, a three-judge federal court panel declared the Texas statutes unconstitutional? but refused to stop prosecuting abortionists (27). By the time that this preliminary ruling came down, Norma McCorvey was ready to deliver her third unwanted child. At this time, McCorvey realized that she was merely a tool for the attorneys and that the lawsuit was not for her; Roe vs. Wade was for all of the women who would come after her. McCorvey delivered the baby and McCluskey found a couple that was eager to adopt the newborn.

Meanwhile, Sarah Weddington and Linda Coffee appealed the court's decision all the way into the Supreme Court. On December 13 of 1971, Weddington argued that? the Texas abortion law violated a woman's fundamental right to choose whether to continue or terminate her pregnancy? before seven Supreme Court justices (27). Weddington continued that the Ninth Amendment (reserves the rights to the people not specifically enumerated to the government) and the Fourteenth Amendment (the due process clause) of the United States Constitution were the specific provisions being violated by the Texas abortion laws. With this, Justice Byron White asked the question that would remain in the minds of everyone present and would become one of the largest issues involved with the abortion war: ? Will that take you right through to the time of birth?? (qty. Risen and Thomas 28).

Weddington smartly sidestepped the question by stating that the Constitution only protects people once they have been born. However, the question of when life began would remain an important question in the minds of all. Jay Floyd, assistant attorney general of Texas, retorted that the case was moot. The woman in question was no longer pregnant, the United States Constitution did not directly address the issue of abortion, and the legalities of abortion regulation should be left to the states (28). But Weddington and Coffee were not alone in their crusade for legalization of abortion. The second abortion case, Doe vs. Bolton, was argued before the Supreme Court on that very same day by attorneys Margie Pitts Hames and Dorothy Basely, both of Georgia.

In this case, another pregnancy would seriously threaten the health of the plaintiff. Within the week, the justices gathered in a discussion of the cases heard. The notes of two separate judges reveal that the decision was a 5-2 split in favor of upholding the Texas court decision that the law was unconstitutional. Chief justice Warren Burger decided to assign the task of writing the court's majority opinion of the abortion cases to the court's newest justice, Henry Blackmun. Blackmun had served as a lawyer for an abortion clinic and his experience there had huge impact on the cases and how they were decided.

The draft stating the court's opinion would not be finished and presented until May 18, 1972. The first draft was seventeen pages long and struck down Texas law as? unconstitutional because it was so vague that no one could tell what it meant? (31). However, the court did not agree that a pregnant woman had the right to do with her body as she pleased. The other justices found the opinion to be poorly written and hardly organized, not to mention that it completely failed to settle the matter at hand. Did a woman have the constitutional right to an abortion or didn? t she?

On May 31st, Blackmun moved to rehear the cases after the appointment of two new Supreme Court justices to fill the current vacancies. On June 26th, after the appointment of two right-to-life justices, the fate of the case was decided: it would be reheard before the full panel of nine members. The case was to be heard before the court on October 11, 1972. During this hearing, the question of when life began was again raised. If one regarded the fetus as a living being, then the unborn child would be protected by the Fourteenth Amendment (33). The assistant attorney general of Texas, Robert Flowers, contended that from the state's viewpoint, life began at conception, invalidating the claim that a woman's right to choose was covered by the Ninth and Fourteenth Amendments.

If the being was killed, it could essentially be charged as murder. Flowers continued that the court has a true talent for protecting the rights of the minorities, and that these unborn children were true, silent minorities (34). On November 22, 1972, the court released a new and very different opinion. Instead of arguing the constitutionality of Texas law, Blackmun approached a new concept: ? that a woman had, at least to a certain point in her pregnancy, a constitutional right to an abortion? (34). The ruling was this: ?

Texas abortion law was a violation of the due process clause of the Fourteenth Amendment? (34). But he did add certain provisions pertaining to the question of when life truly began. During the first trimester of pregnancy, abortion was to be unregulated, but after those first three months, the states had full jurisdiction of the matter. Above this, an abortion would be legal at any state of the pregnancy if to? preserve the life or health of the woman and performed under the direction of a licensed physician? (34-5).

The final draft of the ruling was set on December 21st. It contained the viability clause. At the time, viability was defined, by the court, as the point at which the fetus could possibly or potentially survive outside the womb. After the second trimester, an abortion was not to be performed. Any state could regulate or even ban abortions at this point unless the procedure? was necessary to protect the life or health of the pregnant woman?

(35). The final decision of the courts was publicly announced at 10: 00 AM on January 22, 1973. This monumental court decision affected virtually every state in the US with the exceptions of Alaska, Hawaii, New York, and Washington. These states already had pro-choice legislation in place. At that time, thirty states had legislation banning abortion entirely (except to preserve the life of the mother) and roughly a dozen states allowed abortions only in cases of? rape, incest, or severe fetal abnormalities? (36).

By the end of 1973, the Alan Guttmacher Institute had reported that 744,600 legal abortions had been performed on women ranging in age from fifteen to forty-four years old. In 1975, the annual count reached one million and was estimated at 1.4 million in 1998 (37). After the landmark case of Roe vs. Wade, there were a series of cases in which the courts upheld restrictions on abortions. Harris vs. McRae of 1980 decided that the states should not be mandated to pay for abortion, it required that late term abortions be performed in a manner conducive to the survival of the fetus, and outlawed second-trimester saline abortions.

Later the court decided to let stand a Missouri statute stating that life began at conception and therefore outlawing abortion. In Webster vs. Reproductive Health Service of 1989, the state has a compelling interest in the fetus throughout pregnancy-this was almost a complete turn-around from the Roe vs. Wade precedent. Hodgson vs. Minnesota of 1990 required parental consent for abortions on minors; this decision was also upheld by Ohio vs. Akron Center for Reproductive Health in 1990. In Planned Parenthood vs. Casey of 1992, the panel upheld a 24-hour waiting period for abortions, informed consent requirement, and the requirement of records kept of all abortions performed. However this case struck down Minnesota spousal consent regulations. Even currently, abortion law is changing.

At this very moment, there is a bill to ban partial birth abortions facing the House of Representatives. It passed the Senate in a 65-32 vote. The bill is expected to pass in the House and President Bush promises that if the bill comes across his desk, he will sign it. However, this bill lacks an exemption for the health and well-being of the mother (but it does have a clause allowing partial birth abortions to save the life of the mother). The bill prohibits any act designed to endanger the life of a partially delivered fetus. Partial birth has been defined as the delivery of a fetus up to one of two points.

First, in a regular delivery, if the head of the fetus is outside the womb, it will be considered partial birth. Second, in a breech delivery, if the fetus is delivered to the naval, it will be considered partial birth (msnbc. com). Many fear that this bill is the beginning of a long, slippery slope leading to the overturning of Roe vs. Wade. As a woman in the ever-changing world of abortion legislation, I greatly oppose restrictions on abortion. Although the act is a nefarious one, and I do not agree with it, I do believe that any woman should have access to an abortion if she so chooses.

This may make me pro-choice, but I only view it as logical. The paradigm of pro-lifers is very limited and I think that if a woman carries and raises an unwanted child, this would increase the chances of child abuse or neglect. Also, a woman knows whether or not she is capable of raising a child, if she doesn? t feel capable or has any other reason to terminate the pregnancy, she should be able to do so.

Bibliography

Abortion and the States: Political Change ans Future Regulation. Ed Jane B. Wish ner. American Bar Association, Chicago 1993.
Gorney, Cynthia. Articles of Faith: A Frontline History of the Abortion Wars. Simon and Schuster, New York 1998.
McCorvey, Norma. I am Roe? Simon and Schuster, New York 1993.
Potts, Malcolm and Peter Dig gory and John Peel. Abortion. Cambridge University Press, New York 1977.
Risen, James and Judy L. Thomas. Wrath of Angels: The American Abortion Wars. Basic Books, New York 1998.