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Should Abortion Be Legal Or Illegal?

Categories: Abortion Pro Choice (Abortion)

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Published: Feb 7, 2024

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THE PRINCETON LEGAL JOURNAL

Princeton Legal Journal > The Forum

4 Prin.L.J.F. 12

The First Amendment and the Abortion Rights Debate

Sofia Cipriano

Spring 2024

Following Dobbs v. Jackson ’s (2022) reversal of Roe v. Wade (1973) — and the subsequent revocation of federal abortion protection — activists and scholars have begun to reconsider how to best ground abortion rights in the Constitution. In the past year, numerous Jewish rights groups have attempted to overturn state abortion bans by arguing that abortion rights are protected by various state constitutions’ free exercise clauses — and, by extension, the First Amendment of the U.S. Constitution. While reframing the abortion rights debate as a question of religious freedom is undoubtedly strategic, the Free Exercise Clause is not the only place to locate abortion rights: the Establishment Clause also warrants further investigation.

Roe anchored abortion rights in the right to privacy — an unenumerated right with a long history of legal recognition. In various cases spanning the past two centuries, t he Supreme Court located the right to privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments . Roe classified abortion as a fundamental right protected by strict scrutiny, meaning that states could only regulate abortion in the face of a “compelling government interest” and must narrowly tailor legislation to that end. As such, Roe ’s trimester framework prevented states from placing burdens on abortion access in the first few months of pregnancy. After the fetus crosses the viability line — the point at which the fetus can survive outside the womb — states could pass laws regulating abortion, as the Court found that “the potentiality of human life” constitutes a “compelling” interest. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) later replaced strict scrutiny with the weaker “undue burden” standard, giving states greater leeway to restrict abortion access. Dobbs v. Jackson overturned both Roe and Casey , leaving abortion regulations up to individual states.

While Roe constituted an essential step forward in terms of abortion rights, weaknesses in its argumentation made it more susceptible to attacks by skeptics of substantive due process. Roe argues that the unenumerated right to abortion is implied by the unenumerated right to privacy — a chain of logic which twice removes abortion rights from the Constitution’s language. Moreover, Roe’s trimester framework was unclear and flawed from the beginning, lacking substantial scientific rationale. As medicine becomes more and more advanced, the arbitrariness of the viability line has grown increasingly apparent.

As abortion rights supporters have looked for alternative constitutional justifications for abortion rights, the First Amendment has become increasingly more visible. Certain religious groups — particularly Jewish groups — have argued that they have a right to abortion care. In Generation to Generation Inc v. Florida , a religious rights group argued that Florida’s abortion ban (HB 5) constituted a violation of the Florida State Constitution: “In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.” Similar cases have arisen in Indiana and Texas. Absent constitutional protection of abortion rights, the Christian religious majorities in many states may unjustly impose their moral and ethical code on other groups, implying an unconstitutional religious hierarchy.

Cases like Generation to Generation Inc v. Florida may also trigger heightened scrutiny status in higher courts; The Religious Freedom Restoration Act (1993) places strict scrutiny on cases which “burden any aspect of religious observance or practice.”

But framing the issue as one of Free Exercise does not interact with major objections to abortion rights. Anti-abortion advocates contend that abortion is tantamount to murder. An anti-abortion advocate may argue that just as religious rituals involving human sacrifice are illegal, so abortion ought to be illegal. Anti-abortion advocates may be able to argue that abortion bans hold up against strict scrutiny since “preserving potential life” constitutes a “compelling interest.”

The question of when life begins—which is fundamentally a moral and religious question—is both essential to the abortion debate and often ignored by left-leaning activists. For select Christian advocacy groups (as well as other anti-abortion groups) who believe that life begins at conception, abortion bans are a deeply moral issue. Abortion bans which operate under the logic that abortion is murder essentially legislate a definition of when life begins, which is problematic from a First Amendment perspective; the Establishment Clause of the First Amendment prevents the government from intervening in religious debates. While numerous legal thinkers have associated the abortion debate with the First Amendment, this argument has not been fully litigated. As an amicus brief filed in Dobbs by the Freedom From Religion Foundation, Center for Inquiry, and American Atheists points out, anti-abortion rhetoric is explicitly religious: “There is hardly a secular veil to the religious intent and positions of individuals, churches, and state actors in their attempts to limit access to abortion.” Justice Stevens located a similar issue with anti-abortion rhetoric in his concurring opinion in Webster v. Reproductive Health Services (1989) , stating: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution.” Judges who justify their judicial decisions on abortion using similar rhetoric blur the line between church and state.

Framing the abortion debate around religious freedom would thus address the two main categories of arguments made by anti-abortion activists: arguments centered around issues with substantive due process and moral objections to abortion.

Conservatives may maintain, however, that legalizing abortion on the federal level is an Establishment Clause violation to begin with, since the government would essentially be imposing a federal position on abortion. Many anti-abortion advocates favor leaving abortion rights up to individual states. However, in the absence of recognized federal, constitutional protection of abortion rights, states will ban abortion. Protecting religious freedom of the individual is of the utmost importance — the United States government must actively intervene in order to uphold the line between church and state. Protecting abortion rights would allow everyone in the United States to act in accordance with their own moral and religious perspectives on abortion.

Reframing the abortion rights debate as a question of religious freedom is the most viable path forward. Anchoring abortion rights in the Establishment Clause would ensure Americans have the right to maintain their own personal and religious beliefs regarding the question of when life begins. In the short term, however, litigants could take advantage of Establishment Clauses in state constitutions. Yet, given the swing of the Court towards expanding religious freedom protections at the time of writing, Free Exercise arguments may prove better at securing citizens a right to an abortion.

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Jazatte Dalisay is a ninth-grade student at the Manhattan Center for Science and Mathematics. This essay was composed in a class tutored by James Traub, a long-time PEN Member and coordinator of PEN’s Writers in the Schools program.

Women’s rights have greatly evolved throughout the centuries. As of 2014, women in the U.S. are entitled to their right to decide when to have a child. But there is a constant debate on whether or not abortion should remain legal in the United States. The legalization of abortion has not only kept women from danger, but has provided women with a concrete solution to unplanned pregnancies and protects their civil rights. Taking abortion off the shelf of opportunity for women will only make them seek illicit and dangerous methods to abort an unwanted child and takes away the ability of women to decide what to do with their own bodies.

It is understandable why some might think abortion is an inhumane act that is unnecessary and unlawful, especially since there are alternatives. Adoption has been seen as the perfect solution to unplanned pregnancies; women can simply give their unwanted child away to someone who wants it. With adoption, infertile couples get another chance at making a family, and the child still has a chance at life. This would seem to be the most logical, and humane thing to do. So why does abortion exist?

What people who are pro-life fail to see is the psychological and emotional damage that is inflicted on the woman during the pregnancy. If abortion were to be banned, women who have gotten pregnant through rape and/or incest would have to withstand the shame and pain of knowing that an unwanted child is growing inside them. Victims would be forced to have a constant reminder of their rape. A recent study shows that rape victims are 13 times more likely to attempt suicide, and 26 times more likely to abuse substances such as alcohol and drugs (mscu.edu). Banning abortion would mean destroying the chances of women who are victims of rape to get closure. The psychological and emotional stress can fuel their desperation to rid themselves of the fetus and make them go to great lengths to do that. According to Daniel R. Mishell, Jr., MD, Chair of the Department of Obstetrics and Gynecology at the Keck School of Medicine, University of Southern California, “before abortion was legalized women would frequently try to induce abortions by using coat hangers, knitting needles, or radiator flush, or by going to unsafe “back-alley” abortionists.” In the end, banning abortion will not stop women from trying to rid themselves of the fetus, but just put their own well-being in jeopardy.

Abortion is also a concrete solution to unplanned pregnancies. Though the use of contraceptions, such as the morning-after pill, have been proven to work, it is not always as effective. “Fifty-one percent of women who have abortions had used a contraceptive method in the month they got pregnant, most commonly condoms (27 percent) or a hormonal method (17 percent)” (guttmacher.org). Often, women and teenage girls are too afraid to speak up or don’t even know that they are pregnant, and once they realize they are, it’s already too late—contraceptions are not effective after a certain amount of time. Abortion is their last chance of terminating the pregnancy in a safe and legal way.

Lastly, keeping abortion legal protects women’s rights. Women have full control over their bodies, meaning what they do with them is their decision. If abortion were illegal, women would be stripped of this right. According to Supreme Court Justice Sandra Day O’Conner, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” (procon.org). Abortion is also viewed as a fundamental right under law. The Constitution gives “a guarantee of certain areas or zones of privacy,” and that “This right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (procon.org). Making abortion illegal means robbing women of their rights.

Keeping abortion legal ensures a woman’s safety when faced with unplanned pregnancies, provides hope for rape victims and helps them in moving on with their lives, and protects women’s rights. Making abortion illegal does not stop women from trying to terminate a pregnancy, nor does it save lives. Rather, it does the opposite—illegalizing abortion puts women in danger and prevents them from having control over their own bodies.

Dear Monster: The Naked Poetry of Gozo Yoshimasu

Counterpointed sonic progressions: on translating gozo yoshimasu, the invisible wall, sabotaging free speech in italy, a writer’s writer: on translating regina ullmann, vive charlie hebdo, a companion to translation studies: introduction, your students … or your customers, writers in the schools: november, the other america: black lives and the police state, iranian writers speak out on censorship, remembering saïd mekbel, twenty years on.

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Pro and Con: Abortion

Washington DC.,USA, April 26, 1989. Supporters for and against legal abortion face off during a protest outside the United States Supreme Court Building during Webster V Health Services

To access extended pro and con arguments, sources, and discussion questions about whether abortion should be legal, go to ProCon.org .

The debate over whether abortion should be a legal option has long divided people around the world. Split into two groups, pro-choice and pro-life, the two sides frequently clash in protests.

A June 2, 2022 Gallup poll , 55% of Americans identified as “pro-choice,” the highest percentage since 1995. 39% identified as “pro-life,” and 5% were neither or unsure. For the first time in the history of the poll question (since 2001), 52% of Americans believe abortion is morally acceptable. 38% believed the procedure to be morally wrong, and 10% answered that it depended on the situation or they were unsure.

Surgical abortion (aka suction curettage or vacuum curettage) is the most common type of abortion procedure. It involves using a suction device to remove the contents of a pregnant woman’s uterus. Surgical abortion performed later in pregnancy (after 12-16 weeks) is called D&E (dilation and evacuation). The second most common abortion procedure, a medical abortion (aka an “abortion pill”), involves taking medications, usually mifepristone and misoprostol (aka RU-486), within the first seven to nine weeks of pregnancy to induce an abortion. The Centers for Disease Control and Prevention (CDC) found that 67% of abortions performed in 2014 were performed at or less than eight weeks’ gestation, and 91.5% were performed at or less than 13 weeks’ gestation. 77.3% were performed by surgical procedure, while 22.6% were medical abortions. An abortion can cost from $500 to over $1,000 depending on where it is performed and how long into the pregnancy it is.

Abortion is a safe medical procedure that protects lives.
Abortion bans endangers healthcare for those not seeking abortions.
Abortion bans deny bodily autonomy, creating wide-ranging repercussions.
Life begins at conception, making abortion murder.
Legal abortion promotes a culture in which life is disposable.
Increased access to birth control, health insurance, and sexual education would make abortion unnecessary.

This article was published on June 24, 2022, at Britannica’s ProCon.org , a nonpartisan issue-information source.

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Special Issue: Law Meets World Vol. 68
Symposia Topics

Equality Arguments for Abortion Rights

Introduction.

Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. 1 But in the four decades since Roe , the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equality arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims on the Equal Protection Clause. Finally, we explain why there may be independent political significance in grounding abortion rights in equality values.

Before proceeding, we offer two important caveats. First, in this brief Essay we discuss equality arguments that Supreme Court justices have recognized—not arguments that social movement activists made in the years before Roe , that academics made in their wake, or that ordinary Americans might have made then or might make now. Second, we address, separately, arguments based on the Due Process Clauses and the Equal Protection Clause. In most respects but one, 2 however, we emphasize that a constitutional interpreter’s attention to the social organization of reproduction could play a more important role in determining the permissibility of various abortion-restrictive regulations than the particular constitutional clause on which an argument is based.

I. Equality Arguments for Abortion Rights

Equality arguments are also concerned about the gendered impact of abortion restrictions. Sex equality arguments observe that abortion restrictions deprive women of control over the timing of motherhood and so predictably exacerbate the inequalities in educational, economic, and political life engendered by childbearing and childrearing. Sex equality arguments ask whether, in protecting unborn life, the state has taken steps to ameliorate the effects of compelled motherhood on women, or whether the state has proceeded with indifference to the impact of its actions on women. 5 Liberty arguments focus less on these gendered biases and burdens on women.

To be clear, equality arguments do not suppose that restrictions on abortion are only about women. Rather, equality arguments are premised on the view that restrictions on abortion may be about both women and the unborn— both and . Instead of assuming that restrictions on abortion are entirely benign or entirely invidious, equality analysis entertains the possibility that gender stereotypes may shape how the state pursues otherwise benign ends. The state may protect unborn life in ways it would not, but for stereotypical assumptions about women’s sexual or maternal roles.

For example, the state’s bona fide interest in protecting potential life does not suffice to explain the traditional form of criminal abortion statutes in America. Such statutes impose the entire burden of coerced childbirth on pregnant women and provide little or no material support for new mothers. In this way, abortion restrictions reflect views about how it is “natural” and appropriate for a woman to respond to a pregnancy. If abortion restrictions were not premised on these views, legislatures that sought to coerce childbirth in the name of protecting life would bend over backwards to provide material support for the women who are required to bear—too often alone—the awesome physical, emotional, and financial costs of pregnancy, childbirth, and childrearing. 6 Only by viewing pregnancy and motherhood as a part of the natural order can a legislature dismiss these costs as modest in size and private in nature. Nothing about a desire to protect fetal life compels or commends this state of affairs. When abortion restrictions reflect or enforce traditional sex-role stereotypes, equality arguments insist that such restrictions are suspect and may violate the U.S. Constitution.

II. Equality Arguments in Legal Doctrine

While Roe locates the abortion right in the Due Process Clauses, the Supreme Court has since come to conceive of it as an equality right as well as a liberty right. The Court’s case law now recognizes equality arguments for the abortion right based on the Due Process Clauses. Additionally, a growing number of justices have asserted equality arguments for the abortion right independently based on the Equal Protection Clause.

A. Equality Arguments for Abortion Rights and the Due Process Clauses

The Court has also invoked equality concerns to make sense of the Due Process Clauses in the area of abortion rights. The opinion of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey 11 is shaped to a substantial degree by equality values. At the very moment in Casey when the Court reaffirms constitutional protection for abortion rights, the Court explains that a pregnant woman’s “suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.” 12 This emphasis on the role autonomy of the pregnant woman reflects the influence of the equal protection sex discrimination cases, which prohibit the government from enforcing stereotypical roles on women. Likewise, in the stare decisis passages of Casey , the Court emphasizes, as a reason to reaffirm Roe , that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 13 Here, as elsewhere in Casey , the Court is interpreting the Due Process Clause and drawing on equality values in order to make sense of the substance of the right.

The equality reasoning threading through Casey is not mere surplusage. Equality values help to identify the kinds of restrictions on abortion that are unconstitutional under Casey ’s undue burden test. As the joint opinion applies the test, abortion restrictions that deny women’s equality impose an undue burden on women’s fundamental right to decide whether to become a mother. Thus, the Casey Court upheld a twenty-four-hour waiting period, but struck down a spousal notification provision that was eerily reminiscent of the common law’s enforcement of a hierarchical relationship between husband and wife. Just as the law of coverture gave husbands absolute dominion over their wives, so “[a] State may not give to a man the kind of dominion over his wife that parents exercise over their children.” 14 An equality-informed understanding of Casey ’s undue burden test prohibits government from coercing, manipulating, misleading, or stereotyping pregnant women.

B. Equality Arguments for Abortion Rights and the Equal Protection Clause

In Carhart , Justice Ginsburg invoked equal protection cases—including Virginia —to counter woman-protective arguments for restricting access to abortion, which appear in the majority opinion. Woman-protective arguments are premised on certain judgments about women’s nature and decisional competence. 22 But the equal protection precedents that Justice Ginsburg cited are responsive both to woman-protective and to fetal-protective anti-abortion arguments. As Justice Blackmun’s Casey opinion illustrates, equality arguments are concerned that gender assumptions shape abortion restrictions, even when genuine concern about fetal life is present.

C. What About Geduldig ?

Equality arguments complement liberty arguments, and are likely to travel together. There is therefore little reason to reach the abstract question of whether, if Roe and Casey were overruled, courts applying existing equal protection doctrine would accord constitutional protection to decisions concerning abortion .

Proponents of equality arguments have long regarded the state’s regulation of pregnant women as suspect—as potentially involving problems of sex-role stereotyping. But in one of its early equal protection sex discrimination decisions, the Court reasoned about the regulation of pregnancy in ways not necessarily consistent with this view. In Geduldig , the Court upheld a California law that provided workers comprehensive disability insurance for all temporarily disabling conditions that might prevent them from working, except pregnancy. According to the conventional reading of Geduldig , the Court held categorically that the regulation of pregnancy is never sex based, so that such regulation warrants very deferential scrutiny from the courts.

The conventional wisdom about Geduldig , however, is incorrect. The Geduldig Court did not hold that governmental regulation of pregnancy never qualifies as a sex classification. Rather, the Geduldig Court held that governmental regulation of pregnancy does not always qualify as a sex classification. 24 The Court acknowledged that “distinctions involving pregnancy” might inflict “an invidious discrimination against the members of one sex or the other.” 25 This reference to invidiousness by the Geduldig Court is best understood in the same way that Wendy Williams’s brief in Geduldig used the term “invidious”—namely, as referring to traditional sex-role stereotypes. 26 Particularly in light of the Court’s recognition in Nevada Department of Human Resources v. Hibbs 27 that pregnant women are routinely subject to sex-role stereotyping, 28 Geduldig should be read to say what it actually says, not what most commentators and courts have assumed it to say.

Geduldig was decided at the dawn of the Court’s sex discrimination case law and at the dawn of the Court’s modern substantive due process jurisprudence. The risk of traditional sex-role stereotyping and stereotyping around pregnancy was developed more fully in later cases, including in twenty-five years of litigation over the Pregnancy Discrimination Act. 29 This explains why, when Hibbs was decided in 2003, the Court could reason about pregnancy in ways that the Geduldig Court contemplated in theory but could not register in fact.

III. The Political Authority of the Equal Protection Clause

We have thus far considered the distinctive concerns and grounds of equality arguments, which enable them to complement liberty arguments for abortion rights. We close by considering some distinctive forms of political authority that equality arguments confer.

Some critics pejoratively refer to certain of the Court’s Due Process decisions as recognizing “unenumerated” constitutional rights. Although there are two Due Process Clauses in the Constitution, these interpreters regard decisions like Roe , Casey , and Lawrence , which recognize substantive rather than procedural due process rights, as lacking a basis in the text of the Constitution, hence as recognizing “unenumerated rights.”

The pejorative “unenumerated rights” is often deployed against Roe and Lawrence in an ad hoc manner, without clarification of whether the critic of unenumerated rights is prepared to abandon all bodies of law that have similar roots or structure. For example, those who use the objection from unenumerated rights to attack Roe and Lawrence generally assume that the First Amendment limits state governments; but of course, incorporation of the Bill of Rights against the states is also a feature of the Court’s substantive due process doctrine. 30 Other “unenumerated rights” to which most critics of Roe and Lawrence are committed include the applicability of equal protection principles to the conduct of the federal government. 31 And this view cannot readily distinguish other “unenumerated” rights of unquestioned authority, such as the rights to travel (or not), 32 marry (or not), 33 procreate (or not), 34 and use contraceptives (or not). 35 At their Supreme Court confirmation hearings, Chief Justice Roberts and Justice Alito learned from the experience of Judge Robert Bork by swearing allegiance to Griswold .

But even if the pejorative term “unenumerated” is deployed selectively and inconsistently, it has frequently been deployed in such a way as to affect popular perceptions of Roe ’s authority. Accordingly, in light of criticism of the abortion right as “unenumerated,” it is worth asking whether grounding the right in the Equal Protection Clause, as well as the Due Process Clauses, can enhance the political authority of the right.

Adding claims on the Equal Protection Clause to the due process basis for abortion rights can strengthen the case for those rights in constitutional politics as well as constitutional law. The Equal Protection Clause is a widely venerated constitutional text to which Americans across the political spectrum have long laid claim. And crucially, once the Supreme Court recognizes that people have a right to engage in certain conduct by virtue of equal citizenship, Americans do not count stripping them of this right as an increase in constitutional legitimacy. We cannot think of a precedent for this dynamic. And so: If the Court were to recognize the abortion right as an equality right, a future Court might be less likely to take this right away.

This understanding has increasingly come to shape constitutional law. We have documented the Supreme Court’s equality-informed understanding of the Due Process Clause in Lawrence and Casey . We have also identified the growing number of justices who view the Equal Protection Clause as an independent source of authority for abortion rights. We view this reading of the substantive due process and equal protection cases as contributing to a synthetic understanding of the constitutional basis of the abortion right—as grounded in both liberty and equality values. For a variety of reasons this Essay has explored, the synthetic reading leaves abortions right on stronger legal and political footing than a liberty analysis alone.

Roe v. Wade, 410 U.S. 113 (1973). ↩
See infra Part III on the political authority of the Equal Protection Clause. ↩
For examples of work in the equality tradition that emerged in the years before Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833 (1992), see Laurence H. Tribe, American Constitutional Law § 15-10, at 1353–59 (2d ed. 1990); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985); Sylvia A. Law, Rethinking Sex and the Constitution , 132 U. Pa. L. Rev. 955 (1984); Catharine A. MacKinnon, Reflections on Sex Equality Under Law , 100 Yale L.J. 1281 (1991); Reva Siegel, Reasoning From the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection , 44 Stan. L. Rev. 261 (1992) [hereinafter Siegel, Reasoning From the Body ]; and Cass R. Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography, Abortion, and Surrogacy) , 92 Colum. L. Rev. 1 (1992). For more recent sex equality work, see, for example, What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (Jack M. Balkin ed., 2005) (sex equality opinions by Jack Balkin, Reva Siegel, and Robin West); and Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression , 56 Emory L.J. 815, 833–34 (2007) [hereinafter Siegel, Sex Equality Arguments for Reproductive Rights ] (surveying equality arguments after Casey ). ↩
See, e.g. , Siegel, Sex Equality Arguments for Reproductive Rights , supra note 3, at 817–22. ↩
See id. at 819. ↩
See generally Siegel, Reasoning From the Body , supra note 3. ↩
539 U.S. 558 (2003). ↩
Id. at 578. ↩
Id. at 575. ↩
Thus the Court wrote that the very “continuance” of Bowers v. Hardwick , 478 U.S. 186 (1986), “as precedent demeans the lives of homosexual persons.” Lawrence , 539 U.S. at 575. ↩
505 U.S. 833 (1992). ↩
Id. at 852. ↩
Id. at 856. ↩
Id. at 898. ↩
Id. at 928 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). ↩
Id. ↩
550 U.S. 124 (2007). ↩
Id. at 172 (Ginsburg, J., dissenting). For an argument that “equal citizenship stature” is central to Justice Ginsburg’s constitutional vision, see generally Neil S. Siegel, “Equal Citizenship Stature”: Justice Ginsburg’s Constitutional Vision , 43 New Eng. L. Rev. 799 (2009). ↩
518 U.S. 515 (1996). ↩
Id. at 534. ↩
See generally Neil S. Siegel, The Virtue of Judicial Statesmanship , 86 Tex. L. Rev. 959, 1014–30 (2008); Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey / Carhart, 117 Yale L.J. 1694 (2008). ↩
417 U.S. 484 (1974). ↩
See Neil S. Siegel & Reva B. Siegel, Pregnancy and Sex Role Stereotyping: From Struck to Carhart, 70 Ohio St. L.J. 1095, 1111–13 (2009); Reva B. Siegel, You’ve Come a Long Way, Baby: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs, 58 Stan. L. Rev. 1871, 1891–97 (2006). ↩
Geduldig , 417 U.S. at 496–97 n.20. ↩
See Brief for Appellees at 38, Geduldig , 417 U.S. 484 (No. 73-640), 1974 WL 185752, at *38 (“The issue for courts is not whether pregnancy is, in the abstract, sui generis, but whether the legal treatment of pregnancy in various contexts is justified or invidious. The ‘gross, stereotypical distinctions between the sexes’ . . . are at the root of many laws and regulations relating to pregnancy.” (quoting Frontiero v. Richardson, 411 U.S. 677, 685 (1973))). ↩
538 U.S. 721 (2003). ↩
Id. at 731 (majority opinion of Rehnquist, C.J.) (asserting that differential workplace leave policies for fathers and mothers “were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women’s work”); id. at 736 (quoting Congress’s finding that the “prevailing ideology about women’s roles has . . . justified discrimination against women when they are mothers or mothers-to-be” (citation omitted) (internal quotation marks omitted)). ↩
Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (2006) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . .”). Concerns about sex-role stereotyping played a significant part in Congress’s decision to amend Title VII . See, e.g. , H.R. Rep. No. 95-948, at 3 (1978) (“[T]he assumption that women will become [pregnant] and leave the labor force leads to the view of women as marginal workers, and is at the root of the discriminatory practices which keep women in low-paying and dead-end jobs.”). ↩
See, e.g. , McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) (Scalia, J., concurring) (“Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights ‘because it is both long established and narrowly limited.’” This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.” (quoting Albright v. Oliver, 510 U.S. 266, 275 (1994))). ↩
See Bolling v. Sharpe, 347 U.S. 497 (1954) (holding that de jure school segregation in Washington, D.C. violates the equal protection component of the Due Process Clause of the Fifth Amendment); see also, e.g. , Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas, J., concurring in part and concurring in the judgment) (“These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” (emphasis added)). ↩
See Shapiro v. Thompson, 394 U.S. 618 (1969) (right to travel as a fundamental right). ↩
See Zablocki v. Redhail, 434 U.S. 374 (1978) (right to marry as a fundamental right); Loving v. Virginia, 388 U.S. 1 (1967) (same). ↩
See Skinner v. Oklahoma, 316 U.S. 535 (1942) (right to procreate as a fundamental right). ↩
See Eisenstadt v. Baird, 405 U.S. 438 (1972) (right to contraception for all individuals as a fundamental right); Griswold v. Connecticut, 381 U.S. 479 (1965) (right to contraception for married couples as a fundamental right). ↩
Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting). ↩

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Abortion Rights: For and Against

Kate Greasley and Christopher Kaczor, Abortion Rights: For and Against , Cambridge University Press, 2018, 260pp., $29.99 (pbk), ISBN 9781316621851.

Reviewed by M. T. Lu, University of St. Thomas (Minnesota)

The editorial front matter in this volume claims that the book "gives readers a window into how moral philosophers argue about the contention issue of abortion rights." As a descriptive claim this strikes me as largely true. Unfortunately, how many "moral philosophers" actually do argue about this issue is not how they should.

The book consists of two essays written (apparently independently) by Kate Greasley (pro-abortion) and by Christopher Kaczor (anti-abortion), followed by a response from each author to the other, and finally a short reply to each response. Greasley begins the central argumentative part of her essay in favor of abortion rights by conceding what she calls the "silver bullet," namely that "if the fetus is a person, equivalent in value to a born human being, then abortion is almost always morally wrong and legal abortion permissions almost entirely unjustified" (5). In other words, she identifies moral personhood as the gravamen of the abortion question, setting aside (without argument) so-called women's rights arguments (of the sort made famous by Judith Jarvis Thomson) that abortion can still be justified even if the unborn child is a person.

This concession makes it immediately clear that her essay is not intended to be any kind of synopsis of the pro-choice side of the abortion debate, but to advance what Greasley herself takes to be the strongest case for the non-personhood of the unborn child. This is significant because many pro-choice writers take women's rights style arguments to be more effective, both because they prescind from many of the difficult questions about the nature of the child, but also because they purport to establish the moral permissibility of abortion even if the unborn child is a person. To concede this point, then, is to give up a lot of ground pro-choice writers have long coveted and so must presumably express Greasley's confidence in her own capacity to establish the non-personhood of the fetus.

Unfortunately, anyone expecting some kind of a new argument (much less one likely to change the mind of anyone already familiar with the abortion literature) will be disappointed. Greasley's argumentative strategy is well-worn. She defends a version of the familiar "developmental view" largely drawn from Mary Anne Warren which "takes personhood or moral status to supervene on developmentally acquired capacities, most notably psychological capacities such as consciousness, ability to reason, communication, independent agency, and the ability to form conscious desires" (26). While such traits may not all be necessary for personhood, Greasley concurs with Warren that "a creature could not lack all of the traits and yet be a person" (26).

She proposes that the non-personhood of the fetus can be established by means of three thought experiments, one of which -- the "embryo rescue case" (ERC) -- she seems to think is nearly dispositive. This is something like a trolley scenario in which we are invited to choose between rescuing "five frozen human embryos" or "one fully formed human baby" from a burning building. Greasley holds that it would be "unthinkable" to rescue the embryos "despite the fact that the embryos number five and the baby only one" (27). This she takes to be deeply problematic for anyone holding the standard pro-life view that the embryos are "morally considerable persons." Ultimately, she thinks this shows that "people simply do not believe that death is as serious for the embryo, or as tragic from an impartial point of view, as infant death or the death of an adult human being" (30). Accordingly, "the [intuitive] pull to save the baby . . . rather than the embryos -- even though this would mean saving the one over the many -- tells us something meaningful about our view of the relative status of embryos and born human beings" (31, emphasis in original).

Greasley's thought here is straightforward: if people would save one infant over five embryos, then they simply cannot believe that those embryos are "morally considerable persons." Of course, even if this is what the respondents believe , that doesn't by itself show that the belief is true . To be fair, Greasley does somewhat concede this point, noting that historically many have (falsely) denied the moral status of certain groups. Nonetheless, she largely dismisses the possibility that this is just a mistaken belief and seems to think the only truly plausible explanation for the near universal intuition is a (warranted) belief that the infant is a person and the embryos are not.

I do not have much confidence in the philosophical helpfulness of these sorts of cases in general, but if we are forced to play this game some reflection will show that the ERC doesn't have nearly the force Greasley want to gives it. Consider a parallel case in which we have to choose between saving five fully conscious nonagenarians and one baby. Perhaps I am unusual, but my intuitions are almost entirely in favor of the baby, "even though this would mean saving the one over the many." This is obviously not because I think the elderly are not persons. In fact, forced to choose, I wouldn't hesitate much between saving, say, one mother with small children over five childless, middle-aged tenured philosophy professors. Again, this is not because I deny the personhood of my colleagues (certain faculty meetings notwithstanding), but for the simple reason that I genuinely believe that it would very likely be worse for several small children to lose their mother than for five childless adults to die tragically (though, of course, there are possible circumstances that might cause me to reconsider). In short, a decided preference for one over many does not by itself entail, or even strongly suggest, a clear denial of the personhood of the many.

In the end, though, the larger problem with Greasley's approach is not merely competing intuitions. The personhood question really cannot be convincingly settled by this sort of intuition pumping. Indeed, it is precisely the intractability of the personhood question that leads so many pro-choice writers to embrace a women's right approach that putatively allows them to prescind from the question.

To her credit, after presenting her thought experiments Greasley does at least make some effort to engage personhood arguments. However, she is unsuccessful because her criticisms make clear that she doesn't really understand what she is criticizing. While there are a number of approaches to arguing for the personhood of the unborn child (and both authors discuss Don Marquis' famous "future like ours" argument at length) the key one here is Christopher Kaczor's "Personhood as Endowment" argument.

Kaczor begins by distinguishing a "functional" view of personhood from his "endowment" (or sometimes "substance") view. The functional view (of which Warren's and Greasley's accounts are examples) makes personhood dependent on the occurrent exercise of certain (especially rational) powers. By contrast, on the endowment view "it is sufficient for moral status to be capable of sentience or capable of rational functioning. An appeal is made here not to actual functioning but to the kind of thing the being is, the kind of being capable of sentience or rational functioning" (135). So, what matters for the personhood of the unborn child (or anyone else, such as a sleeping adult) is not whether that individual is currently exercising or demonstrating the powers characteristic of a person, but whether that individual is the kind of being that is rational (or sentient, etc.) by nature.

On this view, any and all human beings, from conception onwards, are rational creatures. If all rational creatures (human or otherwise) are persons, then all human beings are persons. As Kaczor puts it, the "substance view rests on the claim that each and every human being (born and unborn) actually (not just potentially) possesses a rational nature, and therefore merits fundamental respect as a rational being" (135-6, emphasis added).

That Greasley misunderstands the view is clear from her attempt to criticize it. She claims that "if we award [the young] equal moral status, this can only be on the basis of their potential to exercise those capacities in the future " (50, emphasis added). In short, they have a right to life not because they are actual persons, but because "they are at least potential persons in that they are individual human organisms that will, if they survive and develop, eventually become persons" (50). However, she notes that this "potentiality principles suffers . . . from an obvious logical problem . . . [that] there is no reason why being a potential person ought to endow a creature with the very same rights as an actual person" (51). Given that obvious problem, one would think Greasley should give more thought to why pro-life writers, Kaczor included, have continued to insist on the point.

In his initial response, Kaczor notes that he has "never encountered a single scholar who defends the view that the prenatal human being has a right to live because he or she is a potential person . . . The classic pro-life view is not that the prenatal human being is a potential person , but rather that the prenatal human being is a person with potential " (196). Unfortunately, after saying this, he does not go on to explain what it means or why exactly, which is the greatest defect in his part of the book.

In fact, the substance view is rooted in Aristotle's philosophy of nature. While contemporary neo-Aristotelians and Thomists have developed the view considerably, the relevant issue here is that any (putative) potential must belong to a substance with a particular nature. To say that a particular substance has a potential to develop in some way is not to make a prediction about the future , but to make a claim about that thing's nature right now . On this view, no non-rational being can ever develop rational powers ( de novo ) and remain the same thing. [1] Rather, insofar as a rational being begins to exercise those powers at some point in its life it does so precisely because they were always already latent in its nature. To say that a fetus is "potentially rational" is not to say that it will become a rational being when it begins to exercise those powers; it is rather to say that its (latent) rational nature will (likely, but not necessarily) become more fully actualized. [2]

Greasley's putative counterexamples show that she doesn't understand this. She claims that just "as a caterpillar that metamorphoses into a butterfly appears to go through a fundamental and substantial change in nature while remaining the same thing , so it seems true to say of human beings that when the go through a fundamental change in nature as when they become persons, while remaining the same numerical entity" (183). Similarly, she claims her imagined interlocutor "presumably would not agree that dead human bodies are persons . . . even though they are . . . numerically identical with the human being that was alive" (183).

For the substance theorist, neither example makes sense. The caterpillar cannot undergo "a fundamental and substantial change" and yet remain "the same thing" because a substantial change, by definition, involves the destruction of the original thing. The substance theorist would say that the caterpillar has not undergone a substantial change at all (and therefore is numerically identical to the butterfly) but has, well, metamorphosed (i.e., literally, "changed shape"). In Greasley's other case, the substance theorist does not regard a corpse as numerically identical with the human being that was alive, precisely because death is a substantial change .

On this view, the identity of a substance across the actualization of some potency just means that the change in question is not (and cannot be) a substantial change. Instead, such a (developmental) change is the actualization of a latent potency that was always already there in the nature of that substance. This is exactly how a substance theorist understands the human being from conception: as a substance of a rational nature. While the zygote, embryo, fetus, infant, etc. cannot occurrently exercise any rational powers, he or she is a rational creature from the moment of his or her substantial existence. Furthermore, since classical substance theorists hold organisms to be paradigmatic substances, the beginning of the rational substance is identical with the beginning of the organism. Accordingly, the human organism cannot become a person, because that would constitute a substantial change. So, if the being capable of exercising rational powers at some point (say, t + 7 years) is numerically identical with the fetus at t, that just means no substantial change can have occurred between t and t+7.

Of course, this just scratches the surface in articulating the substance view and none of this shows that it is correct. Like any other serious philosophical view, it requires development and defense from a variety of possible objections. My point is simply that Greasley has not raised the right kind of objections, because her criticisms reveal that she's attacking a straw man. As I noted above, however, I also think Kaczor can be legitimately criticized for failing to make clear why this is so. While he often notes Greasley's misunderstandings, he doesn't really show why she's failing to engage the substance view.

Ultimately, this is what I mean when I say the book reflects how "moral philosophers" do argue about abortion, rather than how they should. The kinds of criticisms Greasley offers of potentiality reflect the same kind of misunderstanding of the substance view that Michael Tooley has been offering since the early 70's. There isn't a real dialectic here because Greasley doesn't adequately understand the view she's criticizing and Kaczor hasn't adequately articulated and defended its deeper basis. Greasley's arguments fall flat largely because she's attempting to establish the non-personhood of the unborn child through superficial thought experiments without even grappling with the deeper metaphysical issues at hand. In short, Greasley is talking past Kaczor, not actually identifying and attacking putatively false premises or fallacious reasoning. For Kaczor's part, while I think he does a better job of actually engaging various pro-choice arguments overall, he still leaves much too much unsaid.

In the end, it's not clear what philosophical purpose this book best serves. It does not offer any significantly new arguments (nor do the authors claim otherwise). Neither is it an attempt to summarize the state of the abortion debate, as large parts of that debate are elided or ignored (e.g. the women's rights arguments and the more recent virtue ethics discussions). Even just with regards to the views of the two authors, it's unnecessary in that each of them has a more complete monograph on the subject. I find these sorts of "for and against" books are rarely that successful, and I fear this one will only tend to confirm that judgment.

[1] If Michael Tooley’s famous kitten example (a magic serum that makes a normal kitten into a rational cat) were actually possible, it would constitute a substantial change.

[2] On this view, the claim “human beings are rational” is an example of what Michael Thompson has called an “Aristotelian Categorical.” It is parallel to the claim that “human beings are bipedal” and would not be falsified by adducing an example of a human being born without legs, nor by a normal infant who cannot (yet and may never) walk. Needless to say, much more can and should be said that space does not permit.

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How the Right to Legal Abortion Changed the Arc of All Women’s Lives

Prochoice demonstrators during the March for Women's Lives rally organized by NOW Washington DC April 5 1992.

I’ve never had an abortion. In this, I am like most American women. A frequently quoted statistic from a recent study by the Guttmacher Institute, which reports that one in four women will have an abortion before the age of forty-five, may strike you as high, but it means that a large majority of women never need to end a pregnancy. (Indeed, the abortion rate has been declining for decades, although it’s disputed how much of that decrease is due to better birth control, and wider use of it, and how much to restrictions that have made abortions much harder to get.) Now that the Supreme Court seems likely to overturn Roe v. Wade sometime in the next few years—Alabama has passed a near-total ban on abortion, and Ohio, Georgia, Kentucky, Mississippi, and Missouri have passed “heartbeat” bills that, in effect, ban abortion later than six weeks of pregnancy, and any of these laws, or similar ones, could prove the catalyst—I wonder if women who have never needed to undergo the procedure, and perhaps believe that they never will, realize the many ways that the legal right to abortion has undergirded their lives.

Legal abortion means that the law recognizes a woman as a person. It says that she belongs to herself. Most obviously, it means that a woman has a safe recourse if she becomes pregnant as a result of being raped. (Believe it or not, in some states, the law allows a rapist to sue for custody or visitation rights.) It means that doctors no longer need to deny treatment to pregnant women with certain serious conditions—cancer, heart disease, kidney disease—until after they’ve given birth, by which time their health may have deteriorated irretrievably. And it means that non-Catholic hospitals can treat a woman promptly if she is having a miscarriage. (If she goes to a Catholic hospital, she may have to wait until the embryo or fetus dies. In one hospital, in Ireland, such a delay led to the death of a woman named Savita Halappanavar, who contracted septicemia. Her case spurred a movement to repeal that country’s constitutional amendment banning abortion.)

The legalization of abortion, though, has had broader and more subtle effects than limiting damage in these grave but relatively uncommon scenarios. The revolutionary advances made in the social status of American women during the nineteen-seventies are generally attributed to the availability of oral contraception, which came on the market in 1960. But, according to a 2017 study by the economist Caitlin Knowles Myers, “The Power of Abortion Policy: Re-Examining the Effects of Young Women’s Access to Reproductive Control,” published in the Journal of Political Economy , the effects of the Pill were offset by the fact that more teens and women were having sex, and so birth-control failure affected more people. Complicating the conventional wisdom that oral contraception made sex risk-free for all, the Pill was also not easy for many women to get. Restrictive laws in some states barred it for unmarried women and for women under the age of twenty-one. The Roe decision, in 1973, afforded thousands upon thousands of teen-agers a chance to avoid early marriage and motherhood. Myers writes, “Policies governing access to the pill had little if any effect on the average probabilities of marrying and giving birth at a young age. In contrast, policy environments in which abortion was legal and readily accessible by young women are estimated to have caused a 34 percent reduction in first births, a 19 percent reduction in first marriages, and a 63 percent reduction in ‘shotgun marriages’ prior to age 19.”

Access to legal abortion, whether as a backup to birth control or not, meant that women, like men, could have a sexual life without risking their future. A woman could plan her life without having to consider that it could be derailed by a single sperm. She could dream bigger dreams. Under the old rules, inculcated from girlhood, if a woman got pregnant at a young age, she married her boyfriend; and, expecting early marriage and kids, she wouldn’t have invested too heavily in her education in any case, and she would have chosen work that she could drop in and out of as family demands required.

In 1970, the average age of first-time American mothers was younger than twenty-two. Today, more women postpone marriage until they are ready for it. (Early marriages are notoriously unstable, so, if you’re glad that the divorce rate is down, you can, in part, thank Roe.) Women can also postpone childbearing until they are prepared for it, which takes some serious doing in a country that lacks paid parental leave and affordable childcare, and where discrimination against pregnant women and mothers is still widespread. For all the hand-wringing about lower birth rates, most women— eighty-six per cent of them —still become mothers. They just do it later, and have fewer children.

Most women don’t enter fields that require years of graduate-school education, but all women have benefitted from having larger numbers of women in those fields. It was female lawyers, for example, who brought cases that opened up good blue-collar jobs to women. Without more women obtaining law degrees, would men still be shaping all our legislation? Without the large numbers of women who have entered the medical professions, would psychiatrists still be telling women that they suffered from penis envy and were masochistic by nature? Would women still routinely undergo unnecessary hysterectomies? Without increased numbers of women in academia, and without the new field of women’s studies, would children still be taught, as I was, that, a hundred years ago this month, Woodrow Wilson “gave” women the vote? There has been a revolution in every field, and the women in those fields have led it.

It is frequently pointed out that the states passing abortion restrictions and bans are states where women’s status remains particularly low. Take Alabama. According to one study , by almost every index—pay, workforce participation, percentage of single mothers living in poverty, mortality due to conditions such as heart disease and stroke—the state scores among the worst for women. Children don’t fare much better: according to U.S. News rankings , Alabama is the worst state for education. It also has one of the nation’s highest rates of infant mortality (only half the counties have even one ob-gyn), and it has refused to expand Medicaid, either through the Affordable Care Act or on its own. Only four women sit in Alabama’s thirty-five-member State Senate, and none of them voted for the ban. Maybe that’s why an amendment to the bill proposed by State Senator Linda Coleman-Madison was voted down. It would have provided prenatal care and medical care for a woman and child in cases where the new law prevents the woman from obtaining an abortion. Interestingly, the law allows in-vitro fertilization, a procedure that often results in the discarding of fertilized eggs. As Clyde Chambliss, the bill’s chief sponsor in the state senate, put it, “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant.” In other words, life only begins at conception if there’s a woman’s body to control.

Indifference to women and children isn’t an oversight. This is why calls for better sex education and wider access to birth control are non-starters, even though they have helped lower the rate of unwanted pregnancies, which is the cause of abortion. The point isn’t to prevent unwanted pregnancy. (States with strong anti-abortion laws have some of the highest rates of teen pregnancy in the country; Alabama is among them.) The point is to roll back modernity for women.

So, if women who have never had an abortion, and don’t expect to, think that the new restrictions and bans won’t affect them, they are wrong. The new laws will fall most heavily on poor women, disproportionately on women of color, who have the highest abortion rates and will be hard-pressed to travel to distant clinics.

But without legal, accessible abortion, the assumptions that have shaped all women’s lives in the past few decades—including that they, not a torn condom or a missed pill or a rapist, will decide what happens to their bodies and their futures—will change. Women and their daughters will have a harder time, and there will be plenty of people who will say that they were foolish to think that it could be otherwise.

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Key facts about the abortion debate in America

A woman receives medication to terminate her pregnancy at a reproductive health clinic in Albuquerque, New Mexico, on June 23, 2022, the day before the Supreme Court overturned Roe v. Wade, which had guaranteed a constitutional right to an abortion for nearly 50 years.

The U.S. Supreme Court’s June 2022 ruling to overturn Roe v. Wade – the decision that had guaranteed a constitutional right to an abortion for nearly 50 years – has shifted the legal battle over abortion to the states, with some prohibiting the procedure and others moving to safeguard it.

As the nation’s post-Roe chapter begins, here are key facts about Americans’ views on abortion, based on two Pew Research Center polls: one conducted from June 25-July 4 , just after this year’s high court ruling, and one conducted in March , before an earlier leaked draft of the opinion became public.

This analysis primarily draws from two Pew Research Center surveys, one surveying 10,441 U.S. adults conducted March 7-13, 2022, and another surveying 6,174 U.S. adults conducted June 27-July 4, 2022. Here are the questions used for the March survey , along with responses, and the questions used for the survey from June and July , along with responses.

Everyone who took part in these surveys is a member of the Center’s American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories. Read more about the ATP’s methodology .

A majority of the U.S. public disapproves of the Supreme Court’s decision to overturn Roe. About six-in-ten adults (57%) disapprove of the court’s decision that the U.S. Constitution does not guarantee a right to abortion and that abortion laws can be set by states, including 43% who strongly disapprove, according to the summer survey. About four-in-ten (41%) approve, including 25% who strongly approve.

A bar chart showing that the Supreme Court’s decision to overturn Roe v. Wade draws more strong disapproval among Democrats than strong approval among Republicans

About eight-in-ten Democrats and Democratic-leaning independents (82%) disapprove of the court’s decision, including nearly two-thirds (66%) who strongly disapprove. Most Republicans and GOP leaners (70%) approve , including 48% who strongly approve.

Most women (62%) disapprove of the decision to end the federal right to an abortion. More than twice as many women strongly disapprove of the court’s decision (47%) as strongly approve of it (21%). Opinion among men is more divided: 52% disapprove (37% strongly), while 47% approve (28% strongly).

About six-in-ten Americans (62%) say abortion should be legal in all or most cases, according to the summer survey – little changed since the March survey conducted just before the ruling. That includes 29% of Americans who say it should be legal in all cases and 33% who say it should be legal in most cases. About a third of U.S. adults (36%) say abortion should be illegal in all (8%) or most (28%) cases.

A line graph showing public views of abortion from 1995-2022

Generally, Americans’ views of whether abortion should be legal remained relatively unchanged in the past few years , though support fluctuated somewhat in previous decades.

Relatively few Americans take an absolutist view on the legality of abortion – either supporting or opposing it at all times, regardless of circumstances. The March survey found that support or opposition to abortion varies substantially depending on such circumstances as when an abortion takes place during a pregnancy, whether the pregnancy is life-threatening or whether a baby would have severe health problems.

While Republicans’ and Democrats’ views on the legality of abortion have long differed, the 46 percentage point partisan gap today is considerably larger than it was in the recent past, according to the survey conducted after the court’s ruling. The wider gap has been largely driven by Democrats: Today, 84% of Democrats say abortion should be legal in all or most cases, up from 72% in 2016 and 63% in 2007. Republicans’ views have shown far less change over time: Currently, 38% of Republicans say abortion should be legal in all or most cases, nearly identical to the 39% who said this in 2007.

A line graph showing that the partisan gap in views of whether abortion should be legal remains wide

However, the partisan divisions over whether abortion should generally be legal tell only part of the story. According to the March survey, sizable shares of Democrats favor restrictions on abortion under certain circumstances, while majorities of Republicans favor abortion being legal in some situations , such as in cases of rape or when the pregnancy is life-threatening.

There are wide religious divides in views of whether abortion should be legal , the summer survey found. An overwhelming share of religiously unaffiliated adults (83%) say abortion should be legal in all or most cases, as do six-in-ten Catholics. Protestants are divided in their views: 48% say it should be legal in all or most cases, while 50% say it should be illegal in all or most cases. Majorities of Black Protestants (71%) and White non-evangelical Protestants (61%) take the position that abortion should be legal in all or most cases, while about three-quarters of White evangelicals (73%) say it should be illegal in all (20%) or most cases (53%).

A bar chart showing that there are deep religious divisions in views of abortion

In the March survey, 72% of White evangelicals said that the statement “human life begins at conception, so a fetus is a person with rights” reflected their views extremely or very well . That’s much greater than the share of White non-evangelical Protestants (32%), Black Protestants (38%) and Catholics (44%) who said the same. Overall, 38% of Americans said that statement matched their views extremely or very well.

Catholics, meanwhile, are divided along religious and political lines in their attitudes about abortion, according to the same survey. Catholics who attend Mass regularly are among the country’s strongest opponents of abortion being legal, and they are also more likely than those who attend less frequently to believe that life begins at conception and that a fetus has rights. Catholic Republicans, meanwhile, are far more conservative on a range of abortion questions than are Catholic Democrats.

Women (66%) are more likely than men (57%) to say abortion should be legal in most or all cases, according to the survey conducted after the court’s ruling.

More than half of U.S. adults – including 60% of women and 51% of men – said in March that women should have a greater say than men in setting abortion policy . Just 3% of U.S. adults said men should have more influence over abortion policy than women, with the remainder (39%) saying women and men should have equal say.

The March survey also found that by some measures, women report being closer to the abortion issue than men . For example, women were more likely than men to say they had given “a lot” of thought to issues around abortion prior to taking the survey (40% vs. 30%). They were also considerably more likely than men to say they personally knew someone (such as a close friend, family member or themselves) who had had an abortion (66% vs. 51%) – a gender gap that was evident across age groups, political parties and religious groups.

Relatively few Americans view the morality of abortion in stark terms , the March survey found. Overall, just 7% of all U.S. adults say having an abortion is morally acceptable in all cases, and 13% say it is morally wrong in all cases. A third say that having an abortion is morally wrong in most cases, while about a quarter (24%) say it is morally acceptable in most cases. An additional 21% do not consider having an abortion a moral issue.

A table showing that there are wide religious and partisan differences in views of the morality of abortion

Among Republicans, most (68%) say that having an abortion is morally wrong either in most (48%) or all cases (20%). Only about three-in-ten Democrats (29%) hold a similar view. Instead, about four-in-ten Democrats say having an abortion is morally acceptable in most (32%) or all (11%) cases, while an additional 28% say it is not a moral issue.

White evangelical Protestants overwhelmingly say having an abortion is morally wrong in most (51%) or all cases (30%). A slim majority of Catholics (53%) also view having an abortion as morally wrong, but many also say it is morally acceptable in most (24%) or all cases (4%), or that it is not a moral issue (17%). Among religiously unaffiliated Americans, about three-quarters see having an abortion as morally acceptable (45%) or not a moral issue (32%).

Religion & Abortion

Carrie Blazina is a former digital producer at Pew Research Center .

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Persuasive Essay Guide

Persuasive Essay About Abortion

How To Write A Persuasive Essay On Abortion

10 min read

How To Write a Persuasive Essay About Abortion?

Abortion is a controversial topic, with people having differing points of view and opinions on the matter. There are those who oppose abortion, while some people endorse pro-choice arguments.

It is also an emotionally charged subject, so you need to be extra careful when crafting your persuasive essay.

Before you start writing your persuasive essay, you need to understand the following steps.

Step 1: Choose Your Position

The first step to writing a persuasive essay on abortion is to decide your position. Do you support the practice or are you against it? You need to make sure that you have a clear opinion before you begin writing.

Once you have decided, research and find evidence that supports your position. This will help strengthen your argument.

Check out the video below to get more insights into this topic:

Step 2: Choose Your Audience

The next step is to decide who your audience will be. Will you write for pro-life or pro-choice individuals? Or both?

Knowing who you are writing for will guide your writing and help you include the most relevant facts and information. Additionally, understanding your audience will help you craft a focused thesis statement that clearly addresses their concerns and perspectives.

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Step 3: Make an Outline & Define Argument

Now that you have chosen your position and identified your audience, it’s time to craft your argument. Start by clearly defining your stance on the issue and outlining the reasons behind your belief. Use evidence to support each of your claims, such as facts, statistics, or expert opinions.

To organize your thoughts, create a persuasive essay outline that maps out the structure of your essay.

For instance, your persuasive essay on abortion outline might include:

Introduction: Present the topic and state your thesis.
Body Paragraph 1: Explain your first supporting argument and provide evidence.
Body Paragraph 2: Discuss your second supporting argument with additional evidence.
Body Paragraph 3: Address opposing arguments and provide counterarguments to refute them.
Conclusion: Summarize your main points and restate why your position is valid.

By outlining your essay, you ensure that your argument is logical and well-structured, making your essay more balanced and convincing.

Step 4: Format Your Essay

Once you have the argument ready, it is time to craft your persuasive essay. Follow a standard format for the essay , with an introduction, body paragraphs, and conclusion.

Make sure that each paragraph is organized and flows smoothly. Use clear and concise language, getting straight to the point.

Step 5: Proofread and Edit

The last step in writing your persuasive essay is to make sure that you proofread and edit it carefully. Look for spelling, grammar, punctuation, or factual errors and correct them. This will help make your essay more professional and convincing.

These are the steps you need to follow when writing a persuasive essay on abortion. It is a good idea to read some examples before you start so you can know how they should be written.

Continue reading to find helpful examples.

Persuasive Essay About Abortion Examples

To help you get started, here are some example persuasive essays on abortion that may be useful for your own paper.

Abortion laws are a contentious issue, and persuasive arguments often revolve around the balance between individual rights and moral considerations. Advocates for more permissive abortion laws argue that these laws are essential for safeguarding women’s health and personal autonomy. Access to safe and legal abortion services allows individuals to make critical decisions about their own bodies and futures. Restrictive laws can lead to unsafe, unregulated procedures, disproportionately affecting marginalized communities and exacerbating health disparities.

Moreover, persuasive arguments against overly restrictive abortion laws emphasize that personal circumstances vary widely. Women facing unplanned pregnancies may encounter complex situations, including health risks or severe financial hardship. In such cases, the ability to choose abortion can be crucial for their well-being and that of their families.

Opponents of restrictive laws often argue that decisions about abortion should be made by individuals in consultation with their healthcare providers, rather than by lawmakers who may not fully understand the personal or medical intricacies involved.

In conclusion, persuasive arguments for more flexible abortion laws highlight the importance of personal choice and access to safe medical procedures, advocating for a legal framework that respects individual rights and promotes public health.

Here is another short persuasive essay about abortion:

Abortion remains one of the most polarizing issues in contemporary discourse, and a persuasive argument against it often centers on the moral and ethical considerations surrounding the sanctity of life. Opponents of abortion argue that life begins at conception and that every embryo or fetus has an inherent right to life. This perspective asserts that terminating a pregnancy is a profound moral wrong, akin to ending a human life.

From a moral standpoint, many believe that the potential for human life deserves protection regardless of the circumstances surrounding conception. They argue that adoption presents a viable alternative for those who cannot or choose not to raise a child, ensuring that the unborn have the opportunity to live and contribute to society.

Additionally, some argue that the availability of abortion can lead to a devaluation of human life in general. They contend that societies should focus on strengthening support systems for pregnant individuals, such as improved access to prenatal care and financial assistance, rather than offering abortion as an option.

In conclusion, the argument against abortion emphasizes the ethical obligation to protect potential life and advocate for alternatives that respect both the unborn and the needs of individuals facing unplanned pregnancies.

Persuasive Essay About No To Abortion

Persuasive Speech on Abortion

Legal Abortion Persuasive Essay

Persuasive Essay About Abortion in the Philippines

Persuasive Essay about legalizing abortion

You can also read m ore persuasive essay examples to imp rove your persuasive skills.

Examples of Argumentative Essay About Abortion

An argumentative essay is a type of essay that presents both sides of an argument. These essays rely heavily on logic and evidence.

Here are some examples of short argumentative essays with an introduction, body, and conclusion that you can use as a reference in writing your own argumentative essay.

The debate over whether abortion should be made illegal is a deeply divisive issue, marked by moral, ethical, and legal considerations. On one hand, proponents of making abortion illegal argue that it is a moral and ethical wrong, asserting that the fetus has a right to life from conception. They contend that every potential life should be protected, and that alternatives such as adoption provide viable options for those facing unwanted pregnancies.

Conversely, those opposed to making abortion illegal argue that such a move would infringe on personal autonomy and reproductive rights. They believe that individuals should have the freedom to make decisions about their own bodies, including whether to continue or terminate a pregnancy. Making abortion illegal could lead to unsafe, unregulated procedures, disproportionately affecting low-income women and those without access to safe medical care. Historical evidence suggests that criminalizing abortion does not eliminate it but drives it underground, where it becomes much riskier.

Ultimately, the debate centers on balancing ethical considerations with personal rights. While the protection of potential life is important, ensuring safe, legal access to abortion respects individual autonomy and public health.

Let’s take a look at another short example:

Legalizing abortion remains one of the most contentious issues in modern society, with passionate arguments on both sides. Advocates for legalizing abortion assert that it is a fundamental right for individuals to have control over their own bodies. They argue that access to safe and legal abortion services is essential for protecting women’s health and autonomy. By legalizing abortion, individuals can make informed decisions based on their personal circumstances, including financial stability, health risks, and life goals.

Additionally, legalizing abortion helps prevent unsafe, illegal procedures that can lead to severe health complications or even death. Historical data indicates that restrictive abortion laws do not eliminate abortions but drive them underground, where they become significantly more dangerous.

On the other hand, opponents of legalization often argue that abortion ends a potential life and is therefore morally wrong. They advocate for alternatives such as adoption and assert that society has a responsibility to protect the unborn.

However, the ethical and moral arguments must be balanced with practical considerations. Legalizing abortion ensures that individuals can access safe, regulated medical care and make personal decisions without facing undue risks. It respects the autonomy of individuals while also considering their health and well-being, making it a crucial component of a just and equitable society.

Here are some PDF examples that you can download and read for free!

Abortion Persuasive Essay Introduction

Argumentative Essay About Abortion Conclusion

Argumentative Essay About Abortion Pdf

Argumentative Essay About Abortion in the Philippines

Argumentative Essay About Abortion - Introduction

Persuasive Topics about Abortion

If you are looking for some topics to write your persuasive essay on abortion, here are some examples:

Should abortion be legal in the United States?
Is it ethical to perform abortions, considering its pros and cons?
What should be done to reduce the number of unwanted pregnancies that lead to abortions?
Is there a connection between abortion and psychological trauma?
What are the ethical implications of abortion on demand?
How has the debate over abortion changed over time?
Should there be legal restrictions on late-term abortions?
Does gender play a role in how people view abortion rights?
Is it possible to reduce poverty and unwanted pregnancies through better sex education?
How is the anti-abortion point of view affected by religious beliefs and values?

These are just some of the potential topics that you can use for your persuasive essay on abortion. Think carefully about the topic you want to write about and make sure it is something that interests you.

Check out m ore persuasive essay topics that will help you explore other things that you can write about!

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Facts About Abortion You Need to Know

Here are some facts about abortion that will help you formulate better arguments.

According to the Guttmacher Institute , 1 in 4 pregnancies end in abortion.
The majority of abortions are performed in the first trimester.
Abortion is one of the safest medical procedures, with less than a 0.5% risk of major complications.
In the United States, 14 states have laws that restrict or ban abortion of most forms after 20 weeks gestation.
Seven out of 198 nations allow elective abortions after 20 weeks of pregnancy.
In places where abortion is highly illegal, more women die during childbirth and due to complications resulting from pregnancy.
A majority of pregnant women who opt for abortions do so for financial and social reasons.
According to estimates, 56 million abortions occur annually.

In conclusion, these are some of the examples, steps, and topics that you can use to write a persuasive essay. Make sure to do your research thoroughly and back up your arguments with evidence. This will make your essay more professional and convincing.

Need the services of a persuasive essay writing service ? We've got your back!

MyPerfectWords.com provides help to students in the form of professionally written essays. Our persuasive essay writer can craft quality persuasive essays on any topic, including abortion.

So, just ask our experts ' do my essay ' and get professional help.

Frequently Asked Questions

How to start a persuasive essay about abortion.

To start a persuasive essay about abortion, begin with a compelling introduction that grabs the reader's attention and clearly presents the topic. Provide some background information on the issue and state your thesis statement, which should outline your position on the matter. Ensure your introduction sets up the argument you will be making throughout the essay.

What is a good argument for abortion?

A good argument for abortion could be that it is a woman’s choice to choose whether or not to have an abortion. It is also important to consider the potential risks of carrying a pregnancy to term.

What is a good hook for an essay about abortion?

A good hook for an essay might involve a thought-provoking question, a startling statistic, or a powerful quote. For example:

"Did you know that nearly one in four women will have an abortion by age 45? This staggering statistic highlights the urgency of the abortion debate."
"‘The right to choose is fundamental,’ argues many pro-choice advocates. But how does this stand against the moral objections of pro-life supporters?"

What is a persuasive speech about legalizing abortion?

A persuasive speech about legalizing abortion argues for the importance of granting individuals the right to make autonomous decisions regarding their reproductive health. It emphasizes that legalizing abortion ensures safe, regulated medical procedures, protects women's health, and supports personal autonomy. The speech often highlights the risks associated with illegal abortions, the need for access to healthcare, and the ethical consideration of allowing individuals to choose based on their unique circumstances.

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Keep reading

There’s a Better Way to Debate Abortion

Caution and epistemic humility can guide our approach.

Opponents and proponents of abortion arguing outside the Supreme Court

If Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization becomes law, we will enter a post– Roe v. Wade world in which the laws governing abortion will be legislatively decided in 50 states.

In the short term, at least, the abortion debate will become even more inflamed than it has been. Overturning Roe , after all, would be a profound change not just in the law but in many people’s lives, shattering the assumption of millions of Americans that they have a constitutional right to an abortion.

This doesn’t mean Roe was correct. For the reasons Alito lays out, I believe that Roe was a terribly misguided decision, and that a wiser course would have been for the issue of abortion to have been given a democratic outlet, allowing even the losers “the satisfaction of a fair hearing and an honest fight,” in the words of the late Justice Antonin Scalia. Instead, for nearly half a century, Roe has been the law of the land. But even those who would welcome its undoing should acknowledge that its reversal could convulse the nation.

From the December 2019 issue: The dishonesty of the abortion debate

If we are going to debate abortion in every state, given how fractured and angry America is today, we need caution and epistemic humility to guide our approach.

We can start by acknowledging the inescapable ambiguities in this staggeringly complicated moral question. No matter one’s position on abortion, each of us should recognize that those who hold views different from our own have some valid points, and that the positions we embrace raise complicated issues. That realization alone should lead us to engage in this debate with a little more tolerance and a bit less certitude.

Many of those on the pro-life side exhibit a gap between the rhetoric they employ and the conclusions they actually seem to draw. In the 1990s, I had an exchange, via fax, with a pro-life thinker. During our dialogue, I pressed him on what he believed, morally speaking , should be the legal penalty for a woman who has an abortion and a doctor who performs one.

My point was a simple one: If he believed, as he claimed, that an abortion even moments after conception is the killing of an innocent child—that the fetus, from the instant of conception, is a human being deserving of all the moral and political rights granted to your neighbor next door—then the act ought to be treated, if not as murder, at least as manslaughter. Surely, given what my interlocutor considered to be the gravity of the offense, fining the doctor and taking no action against the mother would be morally incongruent. He was understandably uncomfortable with this line of questioning, unwilling to go to the places his premises led. When it comes to abortion, few people are.

Humane pro-life advocates respond that while an abortion is the taking of a human life, the woman having the abortion has been misled by our degraded culture into denying the humanity of the child. She is a victim of misinformation; she can’t be held accountable for what she doesn’t know. I’m not unsympathetic to this argument, but I think it ultimately falls short. In other contexts, insisting that people who committed atrocities because they truly believed the people against whom they were committing atrocities were less than human should be let off the hook doesn’t carry the day. I’m struggling to understand why it would in this context.

There are other complicating matters. For example, about half of all fertilized eggs are aborted spontaneously —that is, result in miscarriage—usually before the woman knows she is pregnant. Focus on the Family, an influential Christian ministry, is emphatic : “Human life begins at fertilization.” Does this mean that when a fertilized egg is spontaneously aborted, it is comparable—biologically, morally, ethically, or in any other way—to when a 2-year-old child dies? If not, why not? There’s also the matter of those who are pro-life and contend that abortion is the killing of an innocent human being but allow for exceptions in the case of rape or incest. That is an understandable impulse but I don’t think it’s a logically sustainable one.

The pro-choice side, for its part, seldom focuses on late-term abortions. Let’s grant that late-term abortions are very rare. But the question remains: Is there any point during gestation when pro-choice advocates would say “slow down” or “stop”—and if so, on what grounds? Or do they believe, in principle, that aborting a child up to the point of delivery is a defensible and justifiable act; that an abortion procedure is, ethically speaking, the same as removing an appendix? If not, are those who are pro-choice willing to say, as do most Americans, that the procedure gets more ethically problematic the further along in a pregnancy?

Read: When a right becomes a privilege

Plenty of people who consider themselves pro-choice have over the years put on their refrigerator door sonograms of the baby they are expecting. That tells us something. So does biology. The human embryo is a human organism, with the genetic makeup of a human being. “The argument, in which thoughtful people differ, is about the moral significance and hence the proper legal status of life in its early stages,” as the columnist George Will put it.

These are not “gotcha questions”; they are ones I have struggled with for as long as I’ve thought through where I stand on abortion, and I’ve tried to remain open to corrections in my thinking. I’m not comfortable with those who are unwilling to grant any concessions to the other side or acknowledge difficulties inherent in their own position. But I’m not comfortable with my own position, either—thinking about abortion taking place on a continuum, and troubled by abortions, particularly later in pregnancy, as the child develops.

The question I can’t answer is where the moral inflection point is, when the fetus starts to have claims of its own, including the right to life. Does it depend on fetal development? If so, what aspect of fetal development? Brain waves? Feeling pain? Dreaming? The development of the spine? Viability outside the womb? Something else? Any line I might draw seems to me entirely arbitrary and capricious.

Because of that, I consider myself pro-life, but with caveats. My inability to identify a clear demarcation point—when a fetus becomes a person—argues for erring on the side of protecting the unborn. But it’s a prudential judgment, hardly a certain one.

At the same time, even if one believes that the moral needle ought to lean in the direction of protecting the unborn from abortion, that doesn’t mean one should be indifferent to the enormous burden on the woman who is carrying the child and seeks an abortion, including women who discover that their unborn child has severe birth defects. Nor does it mean that all of us who are disturbed by abortion believe it is the equivalent of killing a child after birth. In this respect, my view is similar to that of some Jewish authorities , who hold that until delivery, a fetus is considered a part of the mother’s body, although it does possess certain characteristics of a person and has value. But an early-term abortion is not equivalent to killing a young child. (Many of those who hold this position base their views in part on Exodus 21, in which a miscarriage that results from men fighting and pushing a pregnant woman is punished by a fine, but the person responsible for the miscarriage is not tried for murder.)

“There is not the slightest recognition on either side that abortion might be at the limits of our empirical and moral knowledge,” the columnist Charles Krauthammer wrote in 1985. “The problem starts with an awesome mystery: the transformation of two soulless cells into a living human being. That leads to an insoluble empirical question: How and exactly when does that occur? On that, in turn, hangs the moral issue: What are the claims of the entity undergoing that transformation?”

That strikes me as right; with abortion, we’re dealing with an awesome mystery and insoluble empirical questions. Which means that rather than hurling invective at one another and caricaturing those with whom we disagree, we should try to understand their views, acknowledge our limitations, and even show a touch of grace and empathy. In this nation, riven and pulsating with hate, that’s not the direction the debate is most likely to take. But that doesn’t excuse us from trying.

About the Author

The Rhetoric That Shaped The Abortion Debate

Women take part in a 1977 demonstration in New York City demanding safe and legal abortions for all women. Peter Keegan/Stringer/Hulton Archive/Getty Images hide caption

Women take part in a 1977 demonstration in New York City demanding safe and legal abortions for all women.

Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling By Linda Greenhouse and Reva B. Siegel Hardcover, 352 pages Kaplan Publishing List Price: $26

Before the Supreme Court struck down many state laws restricting abortion in the 1973 landmark case Roe v. Wade , the Justices read briefs from both abortion-rights supporters and opponents.

Pulitzer Prize-winning journalist Linda Greenhouse has collected the best of these briefs -- as well as important documents leading up to the decision -- in a new book, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling.

In an interview on Fresh Air, Greenhouse explains the arguments in favor of decriminalizing abortion -- and the rhetoric used by both sides of the debate that continues to resonate more than 35 years after Roe.

After researching the book, Greenhouse says, she came away with a more nuanced understanding of how the abortion debate has affected so many other issues.

"What the research did indicate to me is how multifaceted the issue is and how the word [abortion] came over time to stand for so much more than the termination of a pregnancy," she says. "It really came to stand for a debate about the place of women in the world."

Linda Greenhouse is a senior fellow at Yale Law School. She covered the Supreme Court for The New York Times for three decades. courtesy of the author hide caption

Linda Greenhouse is a senior fellow at Yale Law School. She covered the Supreme Court for The New York Times for three decades.

Interview Highlights

On why the medical community's lobbying groups shifted to support the decriminalization of abortion

"The medical impetus to start reforming the old abortion laws actually came, not from the American Medical Association but from the American Public Health Association -- from the public health profession. There is a public health doctor, Mary Calderon, who was medical director of Planned Parenthood and also very active in professional public health circles. She wrote some influential articles depicting abortion as a serious public health issue -- that is to say, illegal abortion, back-alley abortion, as a serious public health issue -- and basically started calling on the medical profession to take a new look at this old issue. Abortion could now be a very safe medical procedure when done properly and under the right conditions. And so the facts on the ground had changed: Women were having secret abortions in large numbers; there was a good deal of medical bad consequences and suffering because of this, and it was really the public health doctors who sounded the call."

On the use of the phrase 'the right to choose'

"Jimmye Kimmey was a young woman who was executive director of an organization called the Association for the Study of Abortion (ASA), which was one of the early reform groups and was migrating in the early 1970s from a position of reforming the existing abortion laws to the outright repeal of existing abortion laws, and she wrote a memorandum framing the issue of how the pro-repeal position should be described: 'Right to life is short, catchy, composed of monosyllabic words -- an important consideration in English. We need something comparable. Right to choose would seem to do the job. And ... choice has to do with action, and it's action that we're concerned with.' "

On the significance of J.C. Willke, who wrote Handbook on Abortion

"He is a key figure in the right-to-life movement. He and his wife self-published this little book called Handbook on Abortion in 1971 in the form of questions and answers about abortions from the right-to-life point of view. And it got distributed like wildfire. It now exists in many, many editions. People can go on Google and Amazon and find it easily. It's been translated in many languages, and it really became a Bible of the right-to-life movement. And we were grateful to Dr. Willke for giving us permission to republish it. The reason we wanted to have a substantial excerpt from it is because people on the pro-choice side, I'm quite certain, have never seen it. And it's a very striking document and his voice was and continues to be an important voice on that side."

On feminism's role in shaping the abortion debate

"The feminist community at that time, in the mid-'60s, was much more interested in empowering women to take a full place in the economy, in the world-place. Things like child care. Things like equal pay. Things like getting rid of sex-specific help-wanted ads. Woman wanted, man wanted -- that type of thing. And there wasn't much talk about abortion reform in feminist circles until quite late in the '60s, when Betty Friedan, in a very influential speech, drew the connection between the ability of women to participate fully in the economy and the ability of women to control their reproductive lives. That began a reframing in feminist terms of the issue of abortion reform as part of women's empowerment and of women assuming a new role in society."

Before Roe v. Wade

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Why Abortion Should Be Legal – Essay Writing Tips & Tricks

Table of Contents

The topic of abortion legalization or criminalization has been topical in many countries recently. Even though technology and progress are fast-moving forward, pro-life advocates continue insisting on the fact that women do not possess the right to kill their embryos.

Thus, with the debate going on across multiple domains, you can receive an assignment to compose an essay on abortion at a Law, Medicine, or Politics course.

The key topics considering in essays on abortion today include:

Whether the unborn fetuses can be considered human beings with the right to protection of their life by law.
At which term of pregnancy a fetus can already be considered a living human being.
What legal exceptions should be set in place to regulate women’s right to abortion.
What countries have already established successful legal precedents to regulate the issue.
Arguments of pro-and anti-abortion legislation advocates.
Arguments of women for and against the right to conduct abortion.

Whether you’re for or against abortion in this debate, you can face a situation in which you’ll need to debate your point. That situation is a home assignment to write a why abortion should be made legal essay. And if you’re confused about this task and don’t know how to perform it quickly and easily, we’re here to help you out.

Why Abortion Should Be Legal: Our Thoughts

Here are some ideas for why abortion should be made legal essay that our writing experts share with students needing help. You can borrow any of these themes and examine them in more depth in your argumentative essay about abortion.

Women’s right to have or not to have children is violated with laws regulating abortion. Such laws can cause serious socio-demographic problems as teenage girls often get pregnant because of their ignorance of birth control methods or lack of essential sexual education. Depriving them of a chance for abortion can ruin their life and health.
Biological research suggests that a human fetus is not a living organism at the first couple of weeks of its development, which can be aborted. Besides, women typically commit abortion at the early stages of pregnancy, knowing that aborting a child at a later term is a psychologically traumatic experience equaling murder.
Sometimes, pregnancy results from a crime; some women get pregnant because of a traumatic rape experience. Thus, they are totally reluctant to have a child from a rapist who committed violence against them and caused severe physical and psychological damage.
In the process of pregnancy development, genetic screening can reveal serious genetic disorders or risks for the fetus. Parents who are not ready to bear the burden of caring for the disabled child should have the right to terminate such a pregnancy. It’s not a violation of disabled people’s rights (as the disabled community tends to claim); it’s natural for a parent to wish to avoid giving birth to a child if they know they will doom that person to suffering.
In countries where abortion is illegal, shady medical practices of illegal abortions are flourishing. Women are ready to pay huge money and undergo medical manipulations in non-sterile environments to terminate their pregnancies, which is a serious legal and medical issue.
Women have the right to decide what to do with their bodies. If a woman doesn’t want to be pregnant and give birth to an unwanted child, she shouldn’t be urged by the law to go through this life-changing experience. Parenting should be a wanted, planned act so that children grow up in happy, welcoming families. Giving birth to an unwanted child may later lead to instances of home violence or abuse.

Any of these topics are suitable for why abortion should be made legal essay. We’ve just touched upon the theme broadly, outlining various ethical, medical, and legal issues surrounding this subject. You can take any perspective that speaks to you and develop it in more depth to craft a well-grounded essay to impress your tutor.

Pros and Cons of Abortion You Should Consider

When talking about abortion in academic works, students commonly face the challenge of evaluating the pros and cons of legalization. It’s a typical problem every researcher faces when dealing with evergreen debatable subjects, like marijuana and euthanasia legalization, ban on the death penalty and abortion, animal testing, etc.

Here are the key points you should include in your essay to show your competence in this topic.

Pros of Legal Ban on Abortion

Women’s disability rates resulting from improper abortions will reduce.
The post-abortion infertility rates will go down.
Unborn children’s rights will be protected.
The unethical practice of killing unborn children will be strictly regulated.
A ban on abortions is compliant with Christian ethics.
Birth control and sex education will be emphasized.

Cons of Legal Ban on Abortion

Illegal abortions are likely to flourish.
Raped women will have to undergo the trauma of giving birth to an unwanted child.
Parents of children with severe genetic disorders will have to give birth to disabled children.
The rate of abandoned children will rise because of unwanted infants’ abandonment in the birth hospitals.
Many more families will become unhappier because of the economic and psychological burden of rearing unwanted children.
Women will fight for their rights and feel the oppression of being not the masters of their bodies.

Follow Argumentative Articles on Abortion as Examples

Whenever you talk about sensitive subjects like abortion, the key to sounding competent and non-opinionated is to back your claims with reliable evidence.

In terms of abortion, there are hundreds of valuable sources written by competent professionals backing each side of the debate. Thus, to make your essay look professional and informed, you should first formulate your topic concisely and then conduct a library search for reliable evidence.

We recommend using professional databases for such search so that your arguments look convincing. It’s easy to say that you think that abortion should be made legal because it will be fair for women to make the final decision in this regard. But that argument is not enough for the readers to take your side.

Thus, you can follow this algorithm:

Choose a perspective for your analysis (ethical, religious, political, medical).
Find a database with credible academic sources in this area (e.g., for medical research, we strongly recommend using Google Scholar, CINAHL, or PubMed, while sources from HeinOnline or LOC can inform legal papers on abortion).
Sort the sources you find by relevance to your argument and strength of argumentation, using only those that fit your content and support your point.
It’s also vital to credit the other side of the debate (otherwise, you will sound biased). So, make sure to find sources supporting the opposite position as well, appealing to their arguments and rebating them in the process of your analysis.

Steps to Writing an Abortion Essay

Now, let’s proceed to the actual process of writing on abortion. As a rule, an essay should consist of three major parts – an introduction, a body, and a conclusion. Once you get to the chosen topic, we advise completing a pre-writing exercise: making an outline for your essay. As soon as you have a couple of credible sources at hand and want to outline your significant argumentation points, use a simple outline template to do so.

OUTLINE INTRODUCTION – broad introduction of the subject. Setting the context. A thesis statement. BODY PARAGRAPH #1 – argument #1 (topic sentence). Supporting evidence. A transition to the next point. PARAGRAPH #2 – argument #2 (topic sentence). Supporting evidence. A transition to the next point. PARAGRAPH #3 – argument #3 (topic sentence). Supporting evidence. A transition to the concluding section. CONCLUSION – summary of your key points and a reference to the broader significance of the subject.

Main Difficulties When Discussing an Abortion Topic

You should keep in mind that abortion is a sensitive topic that touches the deepest strings of people’s hearts for various reasons. Some women debate the ban of abortion because of their unfortunate juvenile experiences with abortion leaving them infertile. Others want abortion to be legal because of women’s moral, ethical, and legal right to decide what to do with their bodies and lives.

Thus, whenever you write an abortion essay, make sure to choose words appropriately, use delicate, non-judgmental phrases, and not accuse anyone of right or wrong decisions regarding abortion.

Any Questions?

Having any troubles with your why abortion should be made legal essay? No panic, as our experts are always on standby to help you out. We can write a well-structured, interesting paper on this subject to cover your back and avoid delays in-home task submission.

So, if you have little time for home tasks or simply don’t want to dig into books this weekend, you can delegate the assignment to us. Talk to our managers today, and they’ll assign a competent legal or medical writer to handle an essay on abortion for you with ease.

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How To Win Any Argument About Abortion

So you're talking to someone who says something ignorant . And while you know that they're in the wrong, your words escape you. To make sure that doesn't happen, we've compiled a series of reference guides with the most common arguments — and your counter-arguments — for the most hot-button issues. Ahead, how to argue the pro-choice position .

Common Argument #1: A fetus is a human being, and human beings have the right to life, so abortion is murder.

The Pro-Choice Argument: I'm probably not going to convince you that a fetus isn't a life, as that's basically the most intractable part of this whole debate, so I'll be brief:

A fetus can't survive on its own. It is fully dependent on its mother's body, unlike born human beings.
Even if a fetus was alive, the "right to life" doesn't imply a right to use somebody else's body. People have the right to refuse to donate their organs , for example, even if doing so would save somebody else's life.
The "right to life" also doesn't imply a right to live by threatening somebody else's life. Bearing children is always a threat the life of the mother (see below).
A "right to life" is, at the end of the day, a right to not have somebody else's will imposed upon your body. Do women not have this right as well?

Common Argument #2: If a woman is willing to have sex, she's knowingly taking the risk of getting pregnant, and should be responsible for her actions.

The Pro-Choice Argument: You're asserting that giving birth is the "responsible" choice in the event of a pregnancy, but that's just your opinion. I'd argue that if a mother knows she won't be able to provide for her child, it's actually more responsible to have an abortion, and in doing so prevent a whole lot of undue suffering and misery.

But let's look at this argument a bit further. If you think getting an abortion is "avoiding responsibility," that implies that it's a woman's responsibility to bear a child if she chooses to have sex. That sounds suspiciously like you're dictating what a woman's role and purpose is, and a lot less like you're making an argument about the life of a child.

Common Reply : No, because women can practice safe sex and avoid getting pregnant. If she refuses to use contraception and gets pregnant as a result, that's her fault, and her responsibility.

Your Rebuttal: Not everyone has easy access to contraception , nor does everyone have a good enough sex education class to know how to use it or where to obtain it. But let's just suppose, for the sake of argument, that everyone had access to free contraception and knew how to use it correctly.

Even then, no contraception is 100% effective. Presumably, you oppose abortions even in cases where contraception fails (and it does sometimes fail, even when used perfectly). If that's true, you're saying that, by merely choosing to have sex — with or without a condom — a woman becomes responsible for having a child. And that's a belief that has everything to do with judging a woman's behavior, and nothing to do with the value of life.

Common Argument #3: But I'm OK with abortions in cases of rape .

The Pro-Choice Argument: Why only in those cases? Are the lives of children who were conceived by rape worth less than the lives of children who were willfully conceived? If preserving the life of the child takes primacy over the desires of the mother — which is what you're saying if you if you oppose any legal abortions — then it shouldn't matter how that life was conceived.

Common Argument #4: "If it's a legitimate rape, the female body has ways to try to shut that whole thing down."

Your Response: Go home, Todd Akin , you're drunk.

Common Argument #5: Adoption is a viable alternative to abortion.

The Pro-Choice Argument: This implies that the only reason a woman would want to get an abortion is to avoid raising a child, and that isn't the case. Depending on the circumstances, the mere act of having a child in a hospital can cost between $3,000 and $37,000 in the United States. Giving birth is dangerous, too: In the United States, pregnancy complications are the sixth most common cause of death for women between the ages of 20 and 34.

Even before birth, there are costs to pregnancy. In addition to the whole "carrying another human being around in your stomach for nine months" thing, many women, particularly teens, are shunned and shamed for their pregnancies — not only by friends, families, employers, and classmates, but also by advertisements in the subway . There's also the risk of violent retribution from abusive partners and parents.

In short, there are a lot of reasons a woman might seek an abortion. Adoption doesn't address all of them.

Common Argument #6: When abortion is legal, women just use it as a form of birth control.

The Pro-Choice Argument: Do you have evidence of this? Considering that contraceptives are cheaper, easier, less painful, less time-consuming, less emotionally taxing, and more readily available than abortions, it seems odd to suggest that women who've already decided to use birth control would select abortion as their preferred method. It's more likely the opposite: Historical and contemporary data suggests that women will seek abortions regardless of whether or not they're legal, but that when birth control and contraceptives are more widely accessible, abortion rates go down.

Common Argument #7: Abortions are dangerous.

The Pro-Choice Argument: When performed by trained professionals, abortions are one of the safest procedures in medicine, with a death rate of less than 0.01%. The risk of dying while giving birth is roughly 13 times higher. Abortions performed by people without the requisite skills and training, however, are extremely unsafe. An estimated 68,000 women die every year from back alley abortions, which are generally most common when abortion is illegal and/or inaccessible.

If you'd like to examine the health impact of banning abortion, consider Romania, which banned abortions in 1966. That policy remained in place for about 23 years, during which time over 9,000 women died from unsafe abortions , and countless others were permanently injured. That's around two women dying every day. When the policy was reversed, maternal mortality rate plummeted to one-eighth of what it was at its peak under the no-abortion policy.

Abortions and maternal death rates in Romania, 1965-2010. Image credit: BMJ Group

The negative health effects of prohibiting abortion don't end with the mothers. Romania's abortion ban sparked a nationwide orphan crisis, as roughly 150,000 unwanted newborns were placed in nightmarish state-run orphanages . Many of those orphans now suffer from severe mental and physical health problems, including reduced brain size, schizoaffective disorder, and sociopathy.

When abortion is illegal, it becomes exponentially more unsafe for both women and their children. You may not like the fact that women will seek abortions even when they're illegal, but it is undeniably a fact nonetheless.

Common Argument #8: What if Winston Churchill or Martin Luther King had been aborted?

Your Response: Are you saying abortion policy should be influenced by how good of a person a fetus ends up becoming? If that's the case, what if Joseph Stalin or Pol Pot had been aborted?

Common Argument #9: Many women who get abortions regret their decision later on.

The Pro-Choice Argument: This is a pretty common argument. As with shaming of teen moms, it pops up in subway ads.

This is a bad argument. Should the government ban people from doing things they sometimes regret? Think of everything you've ever regretted — not moving after college, dating the wrong person — and ask yourself if you wish there had been a law to prevent you from doing that thing. You probably don't, because you probably believe people should be able to choose their own paths in life regardless of whether they regret those choices later on. I agree, which is part of why I'm pro-choice .

Common Argument #10: Taxpayers shouldn't be forced to pay for things they find morally disagreeable.

The Pro-Choice Argument: By that rationale, America also shouldn't have a military, since that's funded by taxes, and many taxpayers find American foreign policy morally disagreeable. Also, the Hyde Amendment prevents most public funds from going toward abortions. But that's a moot point, because these are two separate arguments. Believing that abortion should be legal doesn't require you to also believe that taxpayer dollars should fund abortions.

Common Argument #11: What if your mother had aborted you?

The Pro-Choice Argument: Well, if I'd never come into existence in the first place, I probably wouldn't have any strong feelings on the matter. Anyway, I love my mother very much and respect her right to make whatever decisions are right for her body and life.

The best pro-choice arguments , in summary:

A "right to life" doesn't imply a right to use someone else's body to sustain a life.
Women do not have a "responsibility" to have children, and certainly don't assume such a responsibility by virtue of deciding to have sex.
Outlawing abortion is very dangerous, both for women and their children.
Adoption still requires women to carry a baby to term and then give birth, both of which are also inherently dangerous.
Abortions, on the other hand, are quite safe.
Banning abortion violates a woman's right to control her own body.

This article was originally published on March 5, 2014

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September 8th, 2024, book review | roe v. dobbs: the past, present, and future of a constitutional right to abortion.

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Estimated reading time: 6 minutes

In Roe v. Dobbs , Lee C. Bollinger and Geoffrey Stone assemble leading scholars of the US constitution to examine the Supreme Court’s decision to overturn Roe v. Wade with the 2022 ruling in Dobbs v. Jackson Women’s Health Organization. This comprehensive and insightful volume unpacks the far-reaching implications of the Dobbs decision for abortion rights, equality and American constitutional law, writes Kanav N. Sahgal .

Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion . Lee C. Bollinger and Geoffrey R. Stone (eds.). Oxford University Press. 2024.

Bollinger and Stone have assembled some of the best constitutional law scholars in the country to debate and discuss the various legal, political, and historical factors underlying what has arguably become one of the nation’s most controversial issues.

The book is divided into seven parts containing essays from different scholars, critically analysing various aspects of SCOTUS’s abortion jurisprudence. Additionally, the book features an opening and closing dialogue between Bollinger and Stone that sets the overall tone for the volume.

In part one, David A. Strauss, Cary Franklin, and Reva Siegel examine the constitutional foundations of Roe and Dobbs , and the controversies that ensued thereafter. Strauss highlights the significant shift in the political and legal landscape surrounding abortion rights following the Dobbs ruling. While acknowledging liberal critiques of Roe , he suggests that these criticisms may no longer be relevant in the post- Dobbs era. Franklin and Siegel advance this argument, provocatively asking readers to contemplate whether the Dobbs ruling signifies the end of the abortion right or the start of a new chapter in abortion jurisprudence. They argue that the passage of Dobbs could catalyse a reframing of the abortion debate – shifting from a narrow focus on privacy and choice to a broader framework centred on women’s equal protection claims. This perspective aligns with contemporary political trends: ahead of the 2024 presidential election, Democrats have shifted their messaging on abortion by framing it as a broader battle for women’s reproductive health rights, rather than viewing it solely as an issue of personal choice or privacy. This strategy appears to be working and may lay the groundwork for a revitalised political landscape – one in which the fight for abortion rights is rooted in broader principles of women’s equality, social justice, and health equity.

Ahead of the 2024 presidential election, Democrats have shifted their messaging on abortion by framing it as a broader battle for women’s reproductive health rights, rather than viewing it solely as an issue of personal choice or privacy.

Part two features two essays – one by Jonathan F. Mitchell, critiquing Roe , and the other by Erwin Chemerinsky, defending it. Reading these essays consecutively is fascinating because both authors present compelling arguments. Mitchell argues that the Washington v. Glucksberg (1997) standard – requiring unenumerated rights to be “deeply rooted in the nation’s history and tradition” and “implicit in the concept of ordered liberty” – is insufficient. He contends that unenumerated rights should instead be traceable to specific federal statutes or agency regulations. This position directly challenges the legal basis of the Dobbs decision, which relied heavily on the Glucksberg test to overturn Roe .

Meanwhile, Chemerinsky asserts that such an exercise is entirely unnecessary because Roe was both correctly decided and based on solid precedent. Both authors interrogate the legitimacy of SCOTUS’s previous rulings on unenumerated rights, with Mitchell challenging Roe ‘s non-textual origins and Chemerinsky defending it. While I appreciated the forcefulness of both authors’ arguments, I found Chemerinsky’s more persuasive. His point is both compelling and logical: If SCOTUS granted unmarried couples access to contraceptives in Eisenstadt v. Baird (1972) by recognising the right of individuals to be free from unwanted government intrusion in matters as fundamental as deciding whether to “bear or beget a child”, then this right must logically extend to abortion. Abortion restrictions and bans violate the same fundamental principles upheld in Eisenstadt and are therefore incompatible with core tenets of American constitutional law.

Jack M. Balkan describes the steady rise of the conservative legal movement and the political strategies employed by Republican party leaders to appoint conservative judges to SCOTUS.

The two essays in part three examine different facets of the abortion debate by tracing the journey from Roe to Dobbs . Jack M. Balkan describes the steady rise of the conservative legal movement and the political strategies employed by Republican party leaders to appoint conservative judges to SCOTUS. This concerted effort culminated in a conservative majority on the apex court with the confirmation of Justice Amy Coney Barrett on October 26, 2020. This composition ultimately provided the necessary votes to overturn Roe in Dobbs . In contrast, McConnell re-examines the legal arguments advanced by some liberals in the wake of Dobbs , specifically on the need to adhere to the doctrinal principle of stare decisis (determining points according to precedent) and the importance of considering the reliance interests women had developed over nearly fifty years based on the abortion right. Overturning Roe would have had the negative effect of disrupting the lives of women who had organised their personal and professional affairs around the existence of that right. However, he reminds us that while upholding previous SCOTUS rulings has certain advantages, it is not obligatory, and SCOTUS judges retain the authority to depart from it when issuing new rulings.

Overturning Roe would have had the negative effect of disrupting the lives of women who had organised their personal and professional affairs around the existence of that right [to abortion].

The three essays in part four delve deeper into the Dobbs decision, questioning some of its underlying legal principles. Khiara M. Bridges and Cass R. Sunstein share a common concern about the potential threat that the Dobbs ruling poses to other unenumerated due process rights, such as the right to marry someone of the same sex, the right to adult same-sex intimacy, and the right to access contraception. However, the most intriguing essay in this section is Richard M. Re’s, which uniquely supports Chief Justice John Roberts’ opinion in Dobbs . Roberts proposed a compromise solution: he sought to uphold a fifteen-week abortion ban while simultaneously preserving the constitutional right to abortion, thus shifting the legal line from fetal viability (as established by Roe ) to fifteen weeks (as advanced by the state of Mississippi). Although this middle-of-the-road approach had no takers except him, Re writes persuasively about how it might have prevented some of the more extreme abortion bans from going into effect.

Subsequent parts of the book zoom out to analyse the history of abortion politics, providing international perspectives on abortion law jurisprudence, and discussing the potential impact of Dobbs on other related rights. Nancy F. Cott’s compelling contribution in part five forcefully challenges Justice Samuel Alito’s selective interpretation of history as advanced in the majority opinion. Alito justified overturning Roe by applying the Glucksberg standard discussed above, claiming that a lack of evidence grounding the abortion right in the nation’s “history and tradition” meant that Roe had to go. Cott’s scrutiny of Alito’s purportedly flawed historical analysis calls into question the very legitimacy of the Dobbs decision. Part six examines how other constitutional republics have addressed the abortion issue, while part seven delves into the implications of the Dobbs ruling for related issues, including contraception access, digital privacy rights, and the future of in vitro fertilisation (IVF).

A thread tying all the authors together is their seeming agreement on the political significance of the Dobbs ruling and its far-reaching impact on American constitutional law, particularly as it relates to the future of unenumerated rights.

A thread tying all the authors together is their seeming agreement on the political significance of the Dobbs ruling and its far-reaching impact on American constitutional law, particularly as it relates to the future of unenumerated rights. Since Dobbs , SCOTUS has issued two key rulings on abortion rights. One challenged the Food and Drug Administration’s approval of the abortion drug, mifepristone; while the other grappled with an Idaho law potentially conflicting with federal emergency medical care regulations. Notably, SCOTUS ruled against anti-abortion positions in both cases, but on technical grounds, not by affirming or invoking any federal abortion right whatsoever. Also noteworthy is a 2024 Alabama Supreme Court decision that held that frozen embryos are living beings and could be considered children under state law. This ruling also allows IVF clinics to be held liable for the accidental loss of embryos under Alabama’s Wrongful Death of a Minor Act (1872). Citing Dobbs , this ruling effectively disrupted IVF services in the state almost immediately and was interestingly predicted by I. Glenn Cohen in their essay on reproductive technologies (Chapter 18). At the time of writing, a whopping 41 states have abortion bans in effect with only limited exceptions, while only nine states and the District of Columbia do not restrict abortion based on gestational duration.

Abortion will remain a central issue on the ballot leading up to the presidential elections in November. With the federal right to abortion gone and women reliant on state ballot initiatives to enshrine abortion rights in their respective state constitutions, another question arises: Was overturning Roe a politically astute move by the conservative legal movement, or one they will regret? While the short-term picture may not seem favourable, only time will tell what the long-term consequences will be. Until then, all eyes are on the presidency.

This review first appeared at LSE Review of Books .
Image credit: Matt Gush on Shutterstock .
Please read our comments policy before commenting .
Note: This article gives the views of the reviewer, and not the position of USAPP – American Politics and Policy, nor of the London School of Economics.
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About the author

Kanav N. Sahgal is the Communications Manager at Nyaaya, an initiative by the Vidhi Centre for Legal Policy dedicated to making legal information accessible and understandable to the public. He holds a Master’s in Development from Azim Premji University, Bengaluru, and his research interests lie in global gender politics and law, with a particular focus on LGBTQ+ and abortion rights. His professional experience spans development communications, volunteer and program management, and human resources in both non-profit and for-profit sectors.

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How Abortion Views Are Different

With the Supreme Court set to hear a major abortion case, we look at the state of public opinion.

By David Leonhardt

For nearly 50 years, public opinion has had only a limited effect on abortion policy. The Roe v. Wade decision, which the Supreme Court issued in 1973, established a constitutional right to abortion in many situations and struck down restrictions in dozens of states.

But now that the court has agreed to hear a case that could lead to the overturning of Roe , voters and legislators may soon again be determining abortion laws, state by state. This morning’s newsletter offers a guide to public opinion on the subject.

Americans’ views on abortion are sufficiently complex that both sides in the debate are able to point to survey data that suggests majority opinion is on their side — and then to argue that the data friendly to their own side is the “right” data. These competing claims can be confusing. But when you dig into the data, you discover there are some clear patterns and objective truths.

Here are five.

1. A pro-Roe majority …

Polls consistently show that a majority of Americans — 60 percent to 70 percent, in recent polls by both Gallup and Pew — say they do not want the Supreme Court to overturn Roe. Similarly, close to 60 percent of Americans say they favor abortion access in either all or most circumstances, according to Pew.

These are the numbers that abortion rights advocates often emphasize.

2. … and a pro-restriction majority

The most confounding aspect of public opinion is a contradiction between Americans’ views on Roe itself and their views on specific abortion policies: Even as most people say they support the ruling, most also say they favor restrictions that Roe does not permit .

Roe, for example, allows only limited restrictions on abortion during the second trimester, mostly involving a mother’s health. But less than 30 percent of Americans say that abortion should “generally be legal” in the second trimester, according to Gallup. Many people also oppose abortion in specific circumstances — because a fetus has Down syndrome, for example — even during the first trimester.

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Opinion: When I talked about my pre-Roe abortion, other women’s stories poured out: ‘You are the only person I’ve ever told’

Illustration of several women in a row, the person in front is speaking.

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The summer of 1965, the first gynecologist I went to for a diaphragm turned me down. He was within his rights — birth control had only just become legal for married people, and contraception for unmarried people like me would remain against the law until 1972. With the support of a growing feminist movement, single women with financial resources and medical access managed to get the pill anyway and rode the wave of the summer of love, exulting in the sexual revolution. “Make Love Not War” demanded not only peace in Vietnam but liberation from restraints on sex and dread of unwanted pregnancy.

But a diaphragm could slip or have a hole in it. Condoms were considered ineffective and impaired our pleasure and freedom. Intrauterine devices were not in general use. You might skip a birth control pill one day or two days and find yourself pregnant, which is what happened to me. Or sleep with one’s boyfriend and be edged into unwanted sex with someone else and not know who impregnated you. That also happened to me.

BOULDER, CO - JANUARY 31, 2022: Dr Warren Hern talk on the phone in his clinic on January 31, 2022 in Boulder, Colorado. He has been performing abortions since the 1970's. He is known for doing late-term abortions because of fetal anomalies.(Gina Ferazzi / Los Angeles Times)

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White and privileged enough to pay what I remember as $2,000, I maneuvered a “therapeutic abortion,” a loophole in the law that allowed abortion for the health of the woman. Typically, the strategy was mental health. I’m sure I told the psychiatrist I didn’t want to marry the father and that I could not care for a child. The obstetrician agreed to perform the procedure, asked me on the operating table if I wanted to go through with it, and told me not to tell anyone. I told only the friends who drove me to the hospital.

The story still amazes me. Who was that 23-year-old woman who managed to get a safe abortion all on her own? What was the impact of that decision on the rest of my life? I thought little about it until recently, when I realized my students and other younger women had no idea what it had been like back in the day. What to tell them? I remember being alone. I remember feeling scared. I had paid for the abortions of a couple of women I knew and driven a friend to an illegal one in New Jersey. She ended up in the hospital, bleeding badly. “I damn near died,” she told me, 55 years later.

Supporters of Republican presidential nominee former President Donald Trump, who turned out to protest against abortion wait to follow the bus at the start of the "Reproductive Freedom Bus Tour" by the campaign of Democratic presidential nominee Vice President Kamala Harris and running mate Gov. Tim Walz, Tuesday, Sept. 3, 2024, in Boynton Beach, Fla. (AP Photo/Rebecca Blackwell)

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I did not know, when I sought to terminate my pregnancy in New Haven, Conn., that a month before in New York City 12 women had gone public about their abortions at a “speak-out,” or that in Chicago an underground collective called the Janes was arranging safe abortions, free to those who could not afford them. Fear of pregnancy haunted everything beyond a kiss, as did stories of women sent away to have children they gave up for adoption, women who died from botched procedures, boyfriends who wouldn’t help pay, boyfriends who would.

The most radical position on abortion before Roe vs. Wade was repeal not reform — the argument being that any abortion law, no matter how liberal, denied women control of our own bodies. After Roe, abortion opponents took control of the discourse, muddling the clarity of the simple fact that one’s body is one’s own. In 1977, the Hyde Amendment, which denied federal funds for abortion, further reinforced the disparity between women who could afford the procedure and those who could not. Demands for parental consent denied young women autonomy. Amid clinic bombings, the pro-choice movement seemed unable to effectively call out the cruelty of antiabortion rhetoric that privileged the life of an unborn child over that of an unrealized woman or overburdened mother.

People protest about abortion, Friday, June 24, 2022, outside the Supreme Court in Washington. The Supreme Court has ended constitutional protections for abortion that had been in place nearly 50 years — a decision by its conservative majority to overturn the court's landmark abortion cases. (AP Photo/Steve Helber)

Column: Two years after the Supreme Court’s abortion decision, meet the expert on post-Roe America

UC Davis law professor and historian Mary Ziegler has become one of the country’s leading authorities on the abortion issue. She sees a push-pull between judges, anti-abortion lawmakers and Americans who by and large favor abortion rights.

June 23, 2024

Those of us who’d had abortions were made somehow inaudible. “Write a poem,” a friend said to me on our way to Washington for the 1992 March for Women’s Lives, an event prompted by a challenge to a Pennsylvania abortion rights law brought to the Supreme Court . Half a million rallied and Roe was preserved. I’d hardly talked about my abortion, let alone written about it, but I remembered my long-ago loneliness. The poem recounted the sex that led to my 1969 abortion and a visit to a post-Roe women-run clinic. I remember the power of the audience response when I read it aloud and my surprise when a young editor wrote me, saying that her magazine’s decision to publish it had been controversial.

With the Dobbs decision, public speech about abortion is no longer rare. What was silence has become an uproar. The new back alley is a flight you can’t afford to a state where abortion is legal, or a hospital room where you’re left to bleed out because your miscarriage is too late to be legally assisted by professionals.

On a recent women’s mobilization call for Kamala Harris supporters, two women told their stories — both were hospitalized for late-term miscarriages, both abandoned by doctors who feared criminal charges. “I nearly died,” one of the women said. “I was lucky,” said the other.

During the last two years, when I’ve told women I was writing about my pre-Roe abortion, stories poured out: Mine was in a dentist’s office; I had to go to Puerto Rico; mine was botched and I was so alone. That I’d prompted these revelations was surprise enough. More unnerving was that in almost every instance, the woman would lean forward: “You are the only person I’ve ever told,” she’d confide. “Only you will know,” a woman in her 50s whispered to me at a book signing last week.

Though friends who knew me in my 20s tell me I always seemed confident, it’s amazing to me that I was able to make such a decision on my own behalf before I even had a self. Now in my 70s, I realize that moment helped to form me, a woman who has made many decisions against the grain. I still seem confident to friends, but every time an important choice presents itself, I churn back to that long-ago lonely girl. How stunning now to join that mobilizing call where the importance of decisions like mine were acknowledged, where my life as a single working woman was not odd or unusual, where I was invited to shout as one of many.

Honor Moore is on the graduate writing faculty at the New School. Her newest book is “ A Termination .”

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FILE - Amanda Zurawski, one of five plaintiffs, speaks in front of the state Capitol in Austin, Texas, March 7, 2023, as the Center for Reproductive Rights and the plaintiffs announced their lawsuit, which asks for clarity in Texas law as to when abortions can be provided under the "medical emergency" exception. All five women were denied medical care while experiencing pregnancy complications that threatened their health and lives. The women are headed to court Wednesday, July 19, as legal challenges to abortion bans across the U.S. continue a year after the fall of Roe v. Wade. (Sara Diggins/Austin American-Statesman via AP, File)

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PHOENIX, AZ - APRIL 17, 2024: Dr. Barbara Zipkin consults with patient Anna, 24, about her options for an abortion at Camelback Family Planning on April 17, 2024 in Phoenix, Arizona. Anna had heard about the Arizona Supreme Court ruling reinstating an 1864 law banning abortion. "God this makes me so mad," she told her partner. Anna decided to take a pregnancy test and then made an appointment with the clinic before time would run out. Dr Zipkin is accompanied by her support dog Scooter.(Gina Ferazzi / Los Angeles Times)

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Legalized Abortion and the Public Health: Report of a Study (1975)

Chapter: summary and conclusions.

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SUMMARY AND CONCLUSIONS The legal status of abortion in the United States became a heightened national issue with the January 1973 rulings by the Supreme Court that severely limited states' rights to control the procedure. The Court's decisions on the historic cases of Roe v. Wade and Doe v. Bolton precluded any state interference with the doctor-patient decision on abortion during the first trimester (three months) of pregnancy. During the second trimester, a state could intervene only to the extent of insisting on safe medical practices "reasonably related to maternal health." And for approximately the final trimester of a pregnancyâwhat the Court called "the state subsequent to viability" of a fetusâa state could forbid abortion unless medical judgment found it necessary "for the preservation of the life or health of the mother." The rulings crystallized opposition to abortion, led to the intro- duction of national and state legislation to curtail or prohibit it, and generated political pressures for a national debate on the issue. Against this background of concerns about abortion, the Institute of Medicine in 1974 called together a committee to review the existing evidence on the relationship between legalized abortion and the health of the public. The study group was asked to examine the medical risks to women who obtained legal abortions, and to document changes in the risks as legal abortion became more available. Although there have been other publications on particular relationships between abortion and health, the Institute's study is an attempt to enlist scholars, researchers, health practitioners, and concerned lay persons in a more comprehensive analysis of the available medical information on the subject. Ethical issues of abortion are not discussed in this analysis, nor are questions concerning the fetus in abortion. The study group recog- nizes that this approach implies an ethical position with which some may disagree. The emphasis of the study is on the health effects of abortion, not on the alternatives to abortion.

Abortion legislation and practices are important factors in the relationship between abortion and health status. In order to examine legislation and court decisions that have affected the availability of legal abortion in the U.S., the study group classified the laws and practices into three categories: restrictive conditions, under which abortion is prohibited or permitted only to save the pregnant woman's life; moderately restrictive conditions, under which abortion is per- mitted with approval by several physicians, in a wider range of circumstances to preserve the woman's physical or mental health, prevent the birth of a child with severe genetic or congenital defects, or terminate a pregnancy caused by rape or incest; and non-restrictive conditions, under which abortion essentially is available according to the terms of the Supreme Court ruling. Before 1967, all abortion laws in the United States could be classified as restrictive. Easing of restrictions began in 1967 with Colorado, and soon thereafter 12 other states also adopted moderately restrictive legislation to expand the conditions under which therapeutic abortion could be obtained. In 1970, four states (Alaska, Hawaii, New York, and Washington) removed nearly all legal controls on abortion. Non-restrictive conditions have theoretically existed throughout all fifty states since January 22, 1973, the date of the Supreme Court decision. There is evidence that substantial numbers of illegal abortions were obtained in the U.S. when restrictive laws were in force. Although some of the illegal abortions were performed covertly by physicians in medical settings, many were conducted in unsanitary surroundings by unskilled operators or were self-induced. In this report, "illegal abortion" generally refers to those performed by a non-physician or the woman herself. The medical risks associated with the last two types of illegal abortions are patently greater than with the first. A recent analysis of data from the first year of New York's non- restrictive abortion legislation indicates that approximately 70 percent of the abortions obtained legally in New York City would otherwise have been obtained illegally. Replacement of legal for illegal abortions also is reflected in the substantial decline in the number of reported complications and deaths due to other-than-legal abortions since non- restrictive practices began to be implemented in the United States. The number of all known abortion-related deaths declined from 128 in 1970 to 47 in 1973; those deaths specifically attributed to other-than-legal abortions (i.e., both illegal and spontaneous) dropped from 111 to 25 during the same period, with much of that decline attributed to a reduced incidence of illegal abortions. Increased use of effective con- traception may also have played a role in the decline of abortion-related deaths. Methods most frequently used in the United States to induce abortion during the first trimester of pregnancy are suction (vacuum aspiration) or dilatation and curettage (D&C). Abortions in the second trimester are usually performed by replacing part of the amniotic fluid that surrounds

the fetus with a concentrated salt solution (saline abortion), which usually induces labor 24 to 48 hours later. Other second trimester methods are hysterotomy, a surgical entry into the uterus; hysterectomy, which is the removal of the uterus; and, recently, the injection into the uterine cavity of a prostaglandin, a substance that causes muscular contractions that expel the fetus. Statistics on legal abortion are collected for the U.S. government by the Center for Disease Control. CDC's most recent nationwide data are for 1973, the year of the Supreme Court decision. Some of those figures are: â The 615,800 legal abortions reported in 1973 were an increase of approximately 29,000 over the number reported in 1972. These probably are underestimates of the actual number of abortions performed because some states have not yet developed adequate abortion reporting systems. â The abortion ratio (number of abortions per 1,000 live births) increased from 180 in 1972 to 195 in 1973. â More than four out of five abortions were performed in the first trimester, most often by suction or D&C. â Approximately 25 percent of the reported 1973 abortions were obtained outside the woman's home state. In 1972, before the Supreme Court decision, 44 percent of the reported abortions had been obtained outside the home state of the patient, primarily in New York and the District of Columbia. â Approximately one-third of the women obtaining abortions were less than 20 years old, another third were between 20 and 25, and the remaining third over 25 years of age. â In all states where data were available, about 25 percent of the women obtaining abortions were married. â White women obtained 68 percent of all reported abortions, but non-white women had abortion ratios about one-third greater than white women. In 1972, non-white women had abortion rates (abortions per 1,000 women of reproductive age) about twice those of whites in three states from which data were available to analyze. A national survey of hospitals, clinics, and physicians conducted in 1974 by The Alan Guttmacher Institute furnished data on the number of abortions performed in the U.S. during 1973, itemized by state and type of provider. A total of 745,400 abortions were reported in the survey, a figure higher than the 615,800 abortions reported in 1973 to CDC. The Guttmacher Institute obtains its data from providers of health services, while CDC gets most of its data from state health departments.

Risks of medical complications associated with legal abortions are difficult to evaluate because of problems of definition and subjective physician judgment. Available information from 66 centers is provided by the Joint Program for the Study of Abortion, undertaken by The Population Council in 1970-1971. The JPSA study surveyed almost 73,000 legal abortions. It used a restricted definition of major complications, which included unintended major surgery, one or more blood transfusions, three or more days of fever, and several other categories involving prolonged illness or permanent impairment. Although this study also collected data on minor complica- tions, such as one day of fever post-operatively, the data on major com- plications are probably more significant. The major complication rates published by the JPSA study and summarized below relate to women who had abortions in local facilities and from whom follow-up information was obtained. â Complications in women not obtaining concurrent sterilization and with no pre-existing medical problems (e.g., diabetes, heart disease, or gynecological problems) occurred 0.6 times per 100 abortions in the first trimester and 2.1 per 100 in the second trimester. â Complications in women not obtaining concurrent sterilization, but having pre-existing problems, occurred 2.0 times per 100 in the first trimester and 6.7 in the second. â Complications in women obtaining concurrent sterilization and not having pre-existing problems occurred 7.2 times per 100 in the first trimester and 8.0 in the second. â Women with both concurrent sterilization and pre-existing problems experienced complications approximately 17 times per 100 abortions regardless of trimester. The relatively high complication rates associated with sterilization in the JPSA study would probably be lower today because new sterilization techniques require minimal surgery and carry lower rates of complications. The frequency of medical complications due to illegal abortions cannot be calculated precisely, but the trend in these complications can be estimated from the number of hospital admissions due to septic and incomplete abortionâtwo adverse consequences of the illegal procedure.

The number of such admissions in New York City's municipal hospitals declined from 6,524 in 1969 to 3,253 in 1973; most restrictions on legal abortion in New York City were lifted in July of 1970. In Los Angeles, the number of reported hospital admissions for septic abortions declined from 559 in 1969 to 119 in 1971. Other factors, such as an increased use of effective contraception and a decreasing rate of unwanted pregnancies may have contributed to these declines, but it is probable that the introduction of less restrictive abortion legislation was a major factor. There has not been enough experience with legal abortion in the U.S. for conclusions to be drawn about long-term complications, particularly for women obtaining repeated legal abortions. Some studies from abroad suggest that long-term complications may include prematurity, miscarriage, or ectopic pregnancies in future pregnancies, or infertility. But research findings from countries having long experience with legal abortion are inconsistent among studies and the relevance of these data to the U.S. is not known; methods of abortion, medical services, and socio-economic characteristics vary from one country to another. Risks of maternal death associated with legal abortion are lowâ1.7 deaths per 100,000 first trimester procedures in 1972 and 1973âand less than the risks associated with illegal abortion, full-term pregnancy, and most surgical procedures. The 1973 mortality rate for a full-term pregnancy was 14 deaths per 100,000 live vaginal deliveries; the 1969 rate for cesarean sections was 111 deaths per 100,000 deliveries. For second trimester abortions, the combined 1972-73 mortality ratio was 12.2 deaths per 100,000 abortions. (For comparison, the surgical removal of the tonsils and adenoids had a mortality risk of five deaths per 100,000 operations in 1969). When the mortality risk of legal abortion is examined by length of gestation it becomes apparent that the mortality risks increase not only from the first to the second trimester, but also by each week of ges- tation. For example, during 1972-73, the mortality ratio for legal abortions performed at eight weeks or less was 0.5, and for those performed between nine and 10 weeks was 1.7 deaths per 100,000 legal abortions. At 11 to 12 weeks the mortality ratio increased to 4.2 deaths, and by 16 to 20 weeks, the ratio was more than 17 deaths per 100,000 abortions. Hysterotomy and hysterectomy, methods performed infrequently in both trimesters, had a combined mortality ratio of 61.3 deaths per 100,000 procedures. Some data on the mortality associated with illegal abortion are avail- lable from the National Center for Health Statistics (NCHS) and from CDC. In 1961 there were 320 abortion-related deaths reported in the U.S., most of them presumed by the medical profession to be from illegal abortion. By 1973, total reported deaths had declined to 47, of which 16 were specifi- cally attributed to illegal abortions. There has been a steady decline in the mortality rates (number of deaths per 100,000 women aged 15-44) associated with other-than-legal abortion for both white and non-white women, but in 1973 the mortality rate for non-white women (0.29) was almost ten times greater than that reported for white women (0.03).

Psychological effects of legal abortion are difficult to evaluate for reasons that include lack of information on pre-abortion psychological status, ambiguous terminology, and the absence of standardized measurements. The cumulative evidence in recent years indicates that although it may be a stressful experience, abortion is not associated with any detectable increase in the incidence of mental illness. The depression or guilt feelings reported by some women following abortion are generally described as mild and temporary. This experience, however, does not necessarily apply to women with a previous history of psychiatric illness; for them, abortion may be followed by continued or aggravated mental illness. The JPSA survey led to an estimate of the incidence of post-abortion psychosis ranging from 0.2 to 0.4 per 1,000 legal abortions. This is lower than the post-partum psychosis rate of one to two per 1,000 deliveries in the United States. Psychological factors also bear on whether a woman obtains a first or second-trimester abortion. Two studies in particular suggest that women who delay abortion into the later period may have more feelings of ambiva- lence, denial of the pregnancy, or objection on religious grounds, than those obtaining abortions in the first trimester. It is also apparent, however, that some second-trimester abortions result from procedural delays, difficulties in obtaining a pregnancy test, locating appropriate counseling, or arranging and financing the procedure. Diagnosis of severe defects of a fetus well before birth has greatly advanced in the past decade. Developments in the techniques of amniocen- tesis and cell culture have enabled a number of genetic defects and other congenital disorders to be detected in the second trimester of pregnancy. Prenatal diagnosis and the opportunity to terminate an affected pregnancy by a legal abortion may help many women who would have refrained from becoming pregnant or might have given birth to an abnormal child, to bear children unaffected by the disease they fear. Abortion, with or with- out prenatal diagnosis, also can be used in instances where there is reasonable risk that the fetus may be affected by birth defects from non-genetic causes, such as those caused by exposure of the woman to rubella virus infection or x-rays, or by her ingestion of drugs known to damage the fetus. Almost 60 inherited metabolic disorders, such as Tay-Sachs disease, potentially can be diagnosed before birth. More than 20 of these diseases already have been diagnosed with reasonaable accuracy by means of amniocentesis and other procedures. The techniques also can be used to identify a fetus with abnormal chromosomes, as in Down's syndrome (mongolism), and to discriminate between male and female fetuses, which in such diseases as hemophilia would allow determination of whether the fetus was at risk of being affected or simply at risk of being a hereditary carrier of the disorder.

In North America, amniocentesis was performed in more than 6,000 second-trimester pregnancies between 1967 and 1974. The diagnostic accuracy was close to 100 percent and complication rates were about two percent. Less than 10 percent of the diagnoses disclosed an affected fetus, meaning that the great majority of parents at risk averted an unnecessary abortion and were able to carry an unaffected child to term. There are many limitations to the use of prenatal diagnosis, especially for mass screening purposes. Amniocentesis is a fairly expensive procedure, and relatively few medical personnel are qualified to administer it and carry out the necessary diagnostic tests. Only a small number of genetic disorders can now be identified by means of amniocentesis and many couples still have no way to determine whether or not they are to be the parents of a child with genetic defects. Nevertheless, the avail- ability of a legal abortion expands the options available to a woman who faces a known risk of having an affected child. Abortion as a substitute for contraception is one possibility raised by the adoption of non-restrictive abortion laws. Limited data do not allow definitive conclusions, but they suggest that the introduction of non-restrictive abortion laws in the U.S. has not lead to any documented decline in demand for contraceptive services. Among women who sought abortion and who had previously not used contraception or had used it poorly, there is some evidence that they may have begun to practice contraception because contraceptives were made available to them at the time of their abortion. The health aspects of this issue bear on the higher mortality and mor- bidity associated with abortion as compared with contraceptive use, and on the possibility that if women rely on abortion rather than contraception they may have repeated abortions, for which the risk of long-term compli- cations is not known. The incidence of repeated legal abortions is little known because legal abortion has only been widely available in the U.S. for a few years. Data from New York City indicate that during the first two years of non-restrictive laws 2.45 percent of the abortions obtained by residents were repeat procedures. If those two years are divided into six-month periods, repeated legal abortions as a percent of the total rose from 0.01 percent in the first period to 6.02 percent in the last. Part of this increase is attributable to a statistical fact: the longer non-restrictive laws are in effect, the greater the number of women eligible to have repeated legal abortions. Perhaps, too, the reporting system has improved. In any case, some low incidence of repeated abortions is to be expected because none of the current contraceptive methods is completely failureproof, nor are they likely to be used with maximum care on all occasions.

8 A recent study has suggested that one additional factor contributing to the incidence of repeated abortions is that abortion facilities may not routinely provide contraceptive services at the time of the procedure. This is of concern because of recent evidence that ovulation usually oc- curs within five weeks and perhaps as early as 10 days after an abortion. The conclusions of the study group: â Many women will seek to terminate an unwanted pregnancy by abortion whether it is legal or not. Although the mortality and morbidity . associated with illegal abortion cannot be fully measured, they are clearly greater than the risks associated with legal abortion. Evidence suggests that legislation and practices that permit women to obtain abortions in proper medical surroundings will lead to fewer deaths and a lower rate of medical complications than restrictive legislation and practices. ââ¢ The substantial differences between the mortality and morbidity associated with legal abortion in the first and second trimesters suggest that laws, medical practices, and educational programs should enable and encourage women who have chosen abortion to obtain it in the first three months of pregnancy. â More research is needed on the consequences of abortion on health status. Of highest priority are investigations of long-term medical complications, particularly after multiple abortions the effects of abortion and denied abortion on the mental health and social welfare of individuals and families the factors of motivation, behavior, and access associated with contraceptive use and the choice of abortion.

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India’s Abortion Laws Offer Pregnant Women an Illusion of Choice

Complicated, overlapping and contradictory legislation places decisions in the hands of the medical and judicial establishments.

In October 2023, a 27-year-old woman approached the Supreme Court in India with a petition to terminate her pregnancy, which was over 24 weeks. She had discovered it late and was undergoing treatment for postpartum psychosis following the birth of her second child, which left her without the “physical, mental, psychological and financial” wherewithal to continue with a third pregnancy. A two-judge bench initially ruled in her favor, affirming “the right of a woman over her body.”

Yet the law in India only allows for terminations over 24 weeks in cases of fetal abnormalities or to save the life of the mother, and the case was later reopened after a doctor from the All India Institute of Medical Sciences, a premier hospital and medical college in Delhi where the abortion was to be conducted, asked for a court directive on whether a “feticide” could be performed since the fetus, in her words, was “normal.”

This time around, the same bench yielded a split verdict and the matter was put before another bench, headed by Chief Justice of India D.Y. Chandrachud, who after 12 days of deliberation rejected the abortion plea.

This verdict was seen as a step back after previous progressive strides had been made in abortion jurisprudence in India. In September 2022, months after the U.S. Supreme Court overturned Roe v. Wade, India’s top court moved to expand access to safe and legal abortions by explicitly giving the same rights to single women and survivors of marital rape (which is yet to be criminalized in India) as other populations who were previously protected.

Yet in the October 2023 case, the court deemed fetal viability — or rather, the absence of fetal anomalies — as reason enough to deny the pregnant woman access to a medical abortion, despite risks to her mental health.

The two judicial decisions point to divergent attitudes shaping the jurisprudence about abortion in India and have focused attention on the Medical Termination of Pregnancy (MTP) Act, 1971, the main law regulating access to abortion in the country.

Since its enactment, the act has allowed abortions to be carried out by medical professionals under certain conditions and for certain women: in cases where there are risks to the mother or the developing fetus, in cases of rape, and in cases of contraceptive failure for married couples. The act has been amended twice. In 2021, the maximum gestational age for abortions was raised from 20 weeks to 24 weeks but only for certain categories of women, including sexual assault survivors, divorced and widowed women, women with physical and mental disabilities and minors. Then came the 2022 decision equalizing rights for single women and in cases of marital rape.

But the MTP law does not give a pregnant person the right to get an abortion on demand. That choice has always been in the hands of doctors and the courts regardless of the medical, social and personal circumstances surrounding a pregnancy.

“The law in itself is vaguely worded, and there’s a reason why it is like that,” explained Mumbai-based lawyer Abubha Rastogi. “Since the law can’t really list down all the possibilities under which a pregnant woman can seek an abortion, it has been worded in a manner that lets the medical practitioner see the actual or reasonably foreseeable environment of the pregnant woman when deciding whether continuation of the pregnancy will have an impact on her mental or physical health or whether there are substantial fetal anomalies.”

According to a United Nations Population Fund report, two-thirds of all abortions in India are unsafe, and close to eight women die every day because of causes related to unsafe abortions, making it one of the leading drivers of the country’s already high maternal mortality rate. As of 2020, India’s maternal mortality rate stood at 103 (per 100,000 live births) compared with 23 in China, according to a report published jointly by the World Health Organization (WHO), U.N. groups and the World Bank.

The MTP Act isn’t the only law that determines access to abortion in the country. A cocktail of laws, including ones that look into prenatal sex detection, child sexual abuse and drug regulations, complicates access even in the early stages of pregnancy. The Indian criminal code deems both a person “causing a woman with child to miscarry” (an archaic legal framing from the 1860 Indian Penal Code) even if it is with her consent, as well as a woman who causes herself to “miscarry,” as offenders. The MTP Act was initially enacted as an exception to protect doctors from criminal liability.

Yet service providers continue in some ways to operate in an environment of uncertainty, since they run the risk of jail or suspension if they don’t report pregnancy in underage people or they are deemed to lack adequate records of the sale of abortion pills.

Even though the WHO emphasizes that a doctor’s unwillingness to provide the service on moral, ethical or religious grounds — known as conscientious objection — should not prevent a pregnant person from accessing a safe and legal abortion, India’s legal framework does not factor in these recommendations.

A 2021 study led by the U.S.-based Center for Reproductive Rights reported that doctors in India often ask those seeking an abortion to obtain spousal consent or police permission, neither of which are required under the law. They “counsel” women to continue their pregnancies, shame single women for their sexual behavior and face no consequences when they refuse to provide legal abortions.

“Since there is no right to seek an abortion, there is no penalization under the law for denial of service. That translates into a lot of control wielded by providers in terms of gatekeeping women’s access to abortions,” said Subha Shri Balakrishnan, an abortion service provider and member of CommonHealth India, a coalition of doctors that advocates for increased access to sexual and reproductive health care for women and marginalized communities.

Moreover, the MTP Act stipulates that all abortions be conducted by an ob-gyn and mandates that all abortions be carried out in public or government-approved private hospitals with one or two registered practitioners, depending on the gestational age.

This, however, doesn’t take into account health care facilities in rural India where there is a marked shortage of specialized medical care, including gynecologists and obstetricians, thus limiting the pool of service providers for people living in these regions.

In several areas, gynecologists are available only at the district or subdivisional hospital level, which are few and far between, forcing women to travel long distances if they want to access legal abortion services. The study by the Center for Reproductive Rights pointed out that in several districts the nearest government facility with one registered practitioner, where women could have an abortion in the first trimester, was 12 miles away, whereas second-trimester abortion services, which require two registered practitioners, were available only at a distance of 30 miles. For poor women in remote locations with limited road connectivity and public transport, traveling is expensive. In a male-dominated society, they are also not allowed to travel alone. Their access to abortion services without families and communities becoming aware — a daunting prospect given the social stigma surrounding abortion — is severely hampered.

Many women end up obtaining an abortion outside of health facilities. Of the 15.6 million abortions carried out countrywide in 2015, 78% were outside of health facilities and were likely illegal and unsafe, according to a study published in The Lancet.

In the 1960s, the government set up a committee headed by Shantilal Shah, the health and law minister of Maharashtra at the time, to look into the high maternal mortality rate in the country, which found that a disproportionate number of deaths were being caused by septic abortions.

To prevent such deaths, the Shantilal Shah Committee recommended that qualified doctors be allowed to provide abortions under certain circumstances, Suchitra Dalvie, consultant gynecologist and coordinator of the Asia Safe Abortions Partnership, told New Lines in a video call.

That led to the MTP Act, which legalized abortions under specific conditions and gave registered medical practitioners the final say on whether an abortion could be allowed in a given situation.

“The law tells doctors that if you provide abortions under so and so conditions, you will not be criminalized under the IPC [Indian Penal Code],” Dalvie said.

The 1970s also saw the introduction of technologies such as ultrasonography, fetology, chorionic villus sampling and amniocentesis, which were intended to detect fetal genetic anomalies but were used widely to detect the sex of the fetus, which led to an epidemic of female feticide because parents favored sons. By the 1980s and ’90s, rising instances of male sex selection and a declining proportion of female newborns prompted wide-ranging campaigns by women’s rights and civil society organizations to raise awareness about the issue.

In 1994, lawmakers enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, which criminalized prenatal sex determination and prohibited medical practitioners from revealing the sex of the fetus to the family. But putting the law into effect has always been a challenge. One reason is that it is nearly impossible to prove in a court of law that the sex of the fetus has — or has not — been communicated to the family, as such communication can happen nonverbally or, in some cases, the mother herself can discern it from the image on an ultrasound machine screen. So it is of little surprise that the female sex ratio in India has continued to steadily decline since 1991, according to the last census recorded in the country, in 2011.

As the PCPNDT Act failed to stem the tide of prenatal sex selection, it also created an atmosphere of fear for abortion service providers.

“The law is only about diagnostics and does not talk about abortions at all. But doctors are fearful because, under the act, all second-trimester abortions can be construed as ‘female feticide,’” explained Dipika Jain, a professor of law and director of the Centre for Justice, Law and Society at the Jindal Global Law School.

Despite a low conviction rate, the law, which mandates extensive recordkeeping, is frequently used to harass doctors. In the past, medical facilities have been barred by the police from using ultrasound machines (which can be used to detect the sex of the fetus), medical licenses and registrations have been canceled during the duration of a trial, and lawsuits have been filed over minor clerical errors pertaining to the medical history of a pregnant woman. Fear of investigation and prosecution under the PCPNDT Act makes doctors particularly reluctant to provide second-trimester abortions — those beyond 12 weeks, when the sex of the fetus can be determined by an ultrasound examination. In the past 25 years since the law was enacted, 3,158 cases were registered under the PCPNDT Act. But there has been a spike in the past decade, probably because many states have increased their infrastructure to monitor clinics. Until 2014, only 606 cases were registered in the country.

The end result is that pregnant people find it hard to access even those abortions that are well within the scope of the MTP Act.

In 2012, when the Protection of Children from Sexual Offences (POCSO) Act went into effect to safeguard people under the age of 18 from sexual assault, sexual harassment and pornography, it required anyone with knowledge of adolescent sexual activity to report it to the police. Failure to do so could lead to imprisonment of up to six months.

But this stands in conflict with the MTP law’s confidentiality clause, which directs medical practitioners to protect the abortion seeker’s identity. Service providers are thus caught between the legal mandate to report the pregnancy of a minor and the need to maintain patient confidentiality. Fearing legal hassles and investigations, some service providers refuse altogether to see pregnant minors, while others insist on a court order before providing medical care.

Mandatory reporting also deters underage sexual assault survivors from seeking legal abortion services because it exposes them to the legal system, including the police and the judiciary, entities that can choose to deny the pregnant person access to abortion. The POCSO Act also fails to distinguish between sexual assault of a minor and consensual sexual activity between minors. As Jain pointed out, a teenager who is pregnant as a result of consensual sex with someone her age may not go to a legal abortion service because of the risk of her partner facing a jail term.

Then there is the 1940 Drugs and Cosmetics Act, the provisions of which can sometimes prevent access to medical abortion (MA) pills, a less invasive and more affordable alternative to surgical abortions in the first trimester. The act classifies such pills as a Schedule-H drug, meaning that they can be sold only on the prescription of a registered practitioner, and pharmacists must maintain a register recording the details of those procuring these pills.

While Indian regulations allow the use of MA pills for pregnancies of up to seven to nine weeks, pharmacists are reluctant to stock them because of potential conflicts with the MTP Act and as well as misinterpretations of the PCPNDT law.

According to a 2018 report by Pratigya Campaign, a network of individuals and organizations working toward advancing access to safe abortion care in India, the mistaken belief created by the PCPNDT Act that all abortions are sex-selective, coupled with low awareness of the MTP Act, leads drug regulators, especially in states with a low ratio of female to male births, to conduct frequent surprise visits, raids and crackdowns on pharmacies. Many pharmacists told the Pratigya Campaign researchers that drug authorities asked for client details and copies of prescriptions, which violated the privacy of abortion seekers guaranteed under the MTP Act.

In reality, the assumption that a pregnant person can buy MA pills with a prescription and use them for sex-selective abortions is misplaced given that “MA drugs are only approved for use up to nine weeks gestation, when sex determination, using the most common and affordable method — ultrasonography, is not possible,” the authors of the report pointed out. Yet regulatory issues were cited by nearly 70% of pharmacists surveyed by the Pratigya Campaign as the biggest reason for not stocking MA drugs.

“Because of these ambiguities, medical practitioners either refuse to do an abortion or send their clients to court, so that they can seek protection,” Jain said.

For all abortion petitions where the 24-week gestational limit has been crossed, courts rely on the opinions of medical boards. While courts in the past ordered the formation of medical boards on a case-by-case basis, the latest amendments enacted in 2021 make them mandatory in the determination of all abortions past 24 weeks. The result, Jain and her colleagues at the Jindal Global Law School argued at the time, could be “catastrophic” for pregnant people’s access to abortions.

The current guidelines state that medical boards, which typically comprise seven to nine specialists, can exist only at “premier tertiary-level government medical institutes.” (Tertiary-level hospitals or medical facilities are the most specialized level of care facilities in India, where the most complex surgeries are performed.) Of the 612 tertiary care institutions in India as of July 2022, just over 50% are run by the government and they are not uniformly distributed between states or urban and rural areas.

For many women, access to the nearest hospital with a medical board means traveling long distances, incurring additional costs and significant delays in getting an abortion, which increases the medical risks. There have been instances of medical boards asking women to make several visits to far-off hospitals for multiple examinations, prompting some of them to withdraw their pleas for late-term abortions.

Moreover, judges’ reliance on the opinions of medical boards instead of the women’s own gynecologists has led to more invasive examinations and greater delays. Often, when they are unsatisfied with the opinion of one medical board, courts solicit opinions from multiple boards in the same case, causing further delays and unduly requiring the pregnant person to repeatedly submit to medical examinations. Statistically, medical boards that have no connection to the person seeking the abortion are more likely to deny access. There are also no pre-specified parameters or factors that medical boards are asked to consider before offering their opinions on abortion requests, so their advice can be arbitrary and offers no recourse for reconsideration.

For instance, medical boards can assert that an abortion is risky for the pregnant woman but choose not to assess the risk of carrying the pregnancy to term, nor to account for mental health ramifications.

Medical boards also have the power to determine and even reverse, as the Supreme Court case of October 2023 showed, the outcome of abortion pleas. In January this year, an intervention by the medical board led the Delhi High Court to recall an earlier order allowing a 26-year-old widow to abort her 29-week pregnancy on the grounds of mental health. As in the 2023 case, this case too then went to a Supreme Court bench, which finally rejected the petition, refusing to go against the board’s opinion that “foeticide in this case is neither justified nor ethical as the fetus is grossly normal.”

In both these cases, medical boards indicated an unwillingness to perform court-mandated abortions, citing fetal viability and the right of the unborn child, neither of which feature in the law.

One study suggests that considerations of fetal viability and rights have entered courtrooms primarily through the opinions of medical boards — opinions also pushed by anti-abortion Evangelical Christian groups in the U.S., South America and, more recently, some European countries — despite several U.N. conventions and human rights courts establishing that the fetus does not have a right to life and guaranteeing such a right “would place unreasonable limitations on the rights of women.”

The Kerala High Court late last year denied the petition of a 12-year-old rape survivor to abort her 34-week pregnancy, after she pleaded “cataclysmic consequences to her physiological and psychological condition.” The court based its judgment on the opinion of a second medical board, which said continuing the pregnancy would not affect the girl’s psychological condition and the fetus was likely to be born healthy. Court documents did not disclose whether the second medical board was all male or not. The judgment was reminiscent of the Supreme Court’s rejection, in 2017, of the abortion plea of a 10-year-old girl on the grounds that a 32-week termination would jeopardize both her and the fetus, without any consideration given to how a forced pregnancy and birth would affect the girl.

Besides the dire psychological effect on a child forced to become a mother, “there is a high rate of preeclampsia, which can be life-threatening. The reproductive organs have not grown to that extent and the pelvic bones are in no position for that person to deliver vaginally,” explained Balakrishnan. The alternative is a Cesarean section, which is “a major surgery for a 12-year-old, with its own complications,” added Dalvie.

It is young girls who have survived sexual assault who are more likely to seek late-term abortions, said Balakrishnan.

“For them to understand that they’ve missed their period or suspect that they’re pregnant takes a few months, and then the family has to find the resources to seek medical services,” she said. Besides, threats from abusers — who are usually family or affiliated with family — dissuade underage survivors from disclosing the assault until they’re visibly pregnant.

Requests for late abortions are also common among single women who fear societal stigma, women in geographically remote areas who lack physical access to health services, and poor and marginalized women who have to put together financial resources to seek medical services. For all of them, the restrictive grounds for finding a safe and legal abortion after 24 weeks only intensify the access barrier.

It is to ease these barriers that the WHO had recommended the complete decriminalization of abortion and the removal of grounds-based approaches, gestational age limits and third-party authorizations. But India’s MTP amendments extended the gestational limits only for specific categories of women and reinforced third-party authorization by formalizing the medical boards.

While courts have allowed terminations after the 35th week, albeit rarely, on grounds of severe fetal anomalies, abortions rights activists, service providers and lawyers have been pushing for a rights-based framework for abortions.

“It needs to be recognized as a constitutional right and then there needs to be guidelines, declarations, advisories to support that,” Rastogi said. Like all other health care services, abortion should be allowed as a medical procedure, Dalvie said. “If at all there is a need for law, it should support those who want the procedure, not only protect those who provide it.”

Some abortion-related jurisprudence in India has already laid the ground for such a framework. In 2009, the Supreme Court held that a woman’s right to make reproductive choices “to procreate as well as to abstain from procreating” is part of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. In 2017, the court reiterated these observations in a landmark privacy ruling, adding that reproductive rights are derived from the fundamental right to privacy, dignity and bodily integrity protected by the Indian Constitution.

Earlier, in 2016, the Bombay High Court said that a woman alone can decide how she deals with a pregnancy and forcing her to do otherwise is a violation of her bodily integrity. The court also recognized restrictions on abortion access as a form of gender-based discrimination. While the Indian Constitution does not expressly guarantee a right to health, courts have read it as part of the right to life and personal liberty, which the constitution does protect.

“These judgments … while they don’t really lead to a change in law, they do set out jurisprudence, ensuring that if and when there is anything before the courts or the Parliament, there is already the material which will lay the foundation for a further progressive law,” Rastogi said. These judgments “recognize that it is the right to bodily integrity of the person carrying that pregnancy to be able to decide what to do and what not to do [with her body],” he added.

The sections of the Indian penal code that criminalize abortion need to be repealed, said Jain, the law professor. If they are repealed, then “no abortion is illegal and we don’t need the MTP law. We can do with guidelines or some protective legislation so that there is no discrimination on the ground for women, so they can access abortion services,” she said.

Rastogi echoed similar thoughts. Until abortion is decriminalized, “there will always be fear of not being within the scope of what the law permits.”

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