This essay intends to discuss the constitutionality of abortion from purely legal perspective. It is written in a “cold-hearted” fashion, and it gradually guides one to understand the issue of abortion as a point in motion along the axis of history of constitutional law. I led the legal discussion is detached of religion, moral, and feelings, because I deemed law as the most effective and practical tool to settle this controversy. I have faith that the legal system has already (or eventually will have) devised several fair  tests and doctrines to humanely and respectably determine and instruct the court’s decisions in future abortion cases.

       The right to abortion was never explicated stated or implied in any part of the Constitution or the Bill of Rights. This is not queer at all, for the Constitution was not meant to be too specific. Instead, it was designed broad enough to become the “supreme law of the land” – to guide states and locals to establish their own specific laws and regulations as they see fit under the principle of “separation of power” between federal government and state sovereignty.

       Because of this “state sovereignty” claim, the Supreme Court used to be deferential to each state for establishing its own statutes regarding to abortion. The practice of abortion didn’t emerge as a relatively urgent controversy back then, not only because of the indoctrination of conservative values and religion through generations, but also because of the poor success rate of such “fatal” practices under primitive medical conditions. Because the practice of abortion usually resulted in the loss of both lives of the mother and the fetus, few people risked receiving abortion, and even fewer people considered this perilous practice as a “right” - a privilege entitled to individuals to guard their interests from government's intervention.

       With evolving standards of both medical knowledge and social decency, a landmark case rose to the Supreme Court and caught national attention in 1973. The case was later known as Roe v. Wade, for the woman (used “Roe” as her name) who was forced to seek illegal abortion (because the state of Texas outlawed abortion) sued the state of Texas (defended by County District Attorney Henry Wade). The following is an excerpt of case fact citing from Wikipedia:

       “In June 1969, Norma L. McCorvey discovered she was pregnant with her third child. She returned to Dallas, where friends advised her to assert falsely that she had been raped, as she could then obtain a legal abortion (with the understanding that Texas' anti-abortion laws allowed abortion in the cases of rape and incest). However, this scheme failed, as there was no police report documenting the alleged rape. She attempted to obtain an illegal abortion, but found the unauthorized site shuttered, closed down by the police.”

       The Supreme Court's ruling on this case did not come out of nowhere. Abortion is considered as part of “right to privacy” pertaining to, specifically in this abortion case, the right of women to have a control over her body, including the most important aspect, her pregnancy. The trick is that the so called “right to privacy” did not originally exist, and strict constructionists have been criticizing the court’s aggressive interpretation of reinvention of law ever since.

       Despite controversies and complaints from interest groups (especially state power proponents and pro - life activists), the “right to privacy” was formally recognized as an important legal doctrine and precedent in Griswold v. Connecticut “ that such rights are firmly found in the ‘penumbras’ and ‘emanations’ of other constitutional rights.”

       With the “right to privacy” firmly established, the court ruled over time many cases that involves the individual’s constitutional claim of protection against governmental prosecution of their private choices, such as the abortion in Roe v. Wade.

       Indeed, the fight in Roe v. Wade centered on whether a fetus is considered a human who deserves the full protection of the basic right to life. Although the majority opinion retreated from granting women full rights of abortion by adopting the trimester system, the “right of privacy” was confirmed and the incorporation of abortion into the right of privacy is one step forward in the continuous feminism endeavor for true social, cultural, and political equity.

       To the comfort of many feminists who did not live to see further victories in their cause, the Supreme Court almost consistently ruled in the later cases in favor of women’s right to abortion. The rulings' guidance and influence in the judicial system is so overwhelming, that almost all states nowadays are allowing and aiding women to acquire abortion and regulating to ensure the clean and safe operation to effectively preserve the “right to privacy.” 

Hongru Xu