Abortion: Implications of Akron and Roe
The case, City of Akron v. Akron Center for Reproductive Health (426 U.S. 416 (1983)), represents an important dimension in the long-standing issues of abortion, rights to privacy, substantive due process, and individual rights.
The purpose of this report is to offer a critical analysis of the Supreme Court’s decision with an emphasis on the implications inherent in Akron V. Akron Center for Reproductive Health (hereinafter called Akron v. Reproductive Health or Akron).
The objective of this analysis is to present social, political, economic, and ideological issues and to discuss these in the context of the assumptions on which the arguments rely.
The report is divided into three sections. First, a summary of Akron v. Reproductive Health will be presented. Second, religious and political assumptions will be identified. Third, the arguments will be assessed and summarized.
Concepts Important to This Analysis
According, to Black’s Law Dictionary, (Fifth Edition, 1979: 20), “abortion” is defined as “the expulsion of the fetus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life.”
In writing the opinion for the Court, Justice Powell refers to stare decisis that “demands respect in a society governed by the rule of law.” Stare decisis is defined as “to abide by, or adhere to, decided cases” (Black’s Law Dictionary, 1979).
Summary of the Case
Three Akron, Ohio abortion clinics and a physician brought suit challenging the validity of Akron’s abortion ordinance. The ordinance had provisions for the conditions under which abortions could be performed. These ordinances are summarized below.
The Supreme Court, in Akron v. Reproductive Health, held unconstitutional and invalid five provisions of an Akron ordinance that attempted to regulate access to abortion. The ordinance was established such that several conditions were necessary before abortions could be performed. These provisions required that: (1) abortions performed after the first trimester of pregnancy be done in hospitals; (2) parental consent or a court order was necessary for abortions performed on unmarried girls under age 15; (3) the physician had to make statements to the patient to ensure “truly informed consent”; (4) a lapsed 24-hour waiting period between the signing of the consent and the abortion must occur; and (5) the disposal of fetal remains had to be done “in a humane and sanitary manner.”
Writing, for the Court, Justice Powell reasoned that the ordinance posed significant barriers to women seeking, an abortion, went beyond the state’s interest in health, and interfered with physicians in the practice of their profession.
In a dissenting opinion, Justice O’Connor (joined by Justice White and Justice Rehnquist), wrote that the majority’s analysis of the Akron regulation was “inconsistent both with the method and analysis employed in previous cases dealing, with abortion and with the Court’s approach to fundamental rights in other areas” (103 S. Ct. at 2504).
The dissenters argued that the Court applied the wrong standard by using a “compelling state interest” test rather than an “unduly burdensome” test.
The dissenters also held that the Constitution does not empower the Court to “strike down laws because they do not meet our standards of desirable social policy, wisdom, or common sense” (103 S. Ct. at 2505).
There are several issues that must be clarified before an analysis of the policy implications of Akron can be presented.
First, Akron relates to the definition of the trimester standard. The judicial precedents and rationale for the Akron decision and its implications for state legislation on second trimester abortions are significant and noteworthy.
The Court acknowledged that the State has an important legitimate interest in the mother’s health as well as the “potentiality of human life” (410 U.S. at 155). In so doing, the Court acknowledged that as a pregnancy advances towards natural termination, the interests become compelling and shift during this time frame. For example, the compelling interest in the mother’s health occurs through the end of the first trimester. Prior to that time, mortality in abortion is less than in normal childbirth. The compelling interest in the potential life is determined to be “viability” or the point at which the fetus is capable of life outside the mother’s womb.
The Court’s decision ruled that, for the first trimester, the state may not interfere with the medical judgment of the pregnant woman’s attending physician. After the first trimester, the state interest in promoting the health of the mother allows abortion regulations that are reasonably related to maternal health (Curry, 1983).
Second, the fourteenth amendment fundamental privacy right involves the liberty that a woman has to choose to terminate her pregnancy. This, in essence, protects a woman’s abortion decision from unjustified state interference, at least during the first trimester. The importance of this ruling relates to the concept of “personal liberty,” as guaranteed by the Constitution.
The Court found that the abortion decision and implementation are left to the judgment of the pregnant woman’s attending physician.
Third, the third party participation and the minor’s right to consent to abortion refers to an age stipulation in the abortion decision.
The common law requirement, historically, is that of the pregnant and the minor’s minors are “presumed to be unable to give meaningful consent to medical treatment because of lack of experience, knowledge, and maturity” (Karr, 1983: 786).
However, over time, three exceptions to this requirement emerged that have direct implications for the decision in Akron.
These exceptions include: (1) exception for emergency treatment; (2) emancipated minor doctrine based on a minor’s independence rather than the minor’s knowledge or maturity; and (3) the “mature minor doctrine” that defines the elements of necessary mental capacity and maturity to understand the nature and consequences of medical treatment sought (Karr, 1983).
The third party participation requirement has implications in cases wherein states have attempted to restrict women’s right to abortions. The issue did not arise in Akron, but state abortion statutes requiring third party participation (spousal notification or parental consent) have been found unconstitutional (Lobman, 1983).
Fourteenth Amendment Issue
Although a woman’s fundamental right of privacy is not specifically identified in the Constitution, the due process clause is broad enough to include and protect a woman’s personal choice whether or not to have an abortion.
The Court ruled that central among these protected liberties (not found in the Constitution) is an individual’s “freedom of personal choice in matters of marriage and family life” (Roe v. Wade, 410 U.S. at 169).
Stare Decisis: Roe v. Wade
All of the above discussion relates directly to the 1973 Supreme Court decision in Roe v. Wade (410 U.S. at 113).
In concert with Justice Powell’s stare decisis doctrine, this landmark case, Roe v. Wade, has important implications for the decision rendered in Akron. Justice Powell writes, “we . . . reaffirm Roe v. Wade” (462 U.S. 416 (1983).
Roe v. Wade (410 U.S. 113 (1973)) was an attack on the Texas abortion laws making, it a crime to “procure an abortion” except by “medical advice for the purpose of saving the life of the mother” (Doe v. Bolton, 410 U.S. 179 (1973)). The challengers were a pregnant single woman (Jane Roe), a childless couple (John and Mary Doe), and a licensed physician (Dr. Hallford). The suits of the Roes and the Does were class actions. The three-judge District Court ruled the Does’ complaint non-justiciable, but granted declaratory relief to Roe and Dr. Hallford, holding the law unconstitutional under the Ninth Amendment.
The primary ruling in Roe v. Wade was that the “right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, includes a woman’s right to decide to terminate her pregnancy” (Young, 1983: 1290).
The courts have generally upheld the central role of the pregnant woman, her doctor, and their privacy in making the abortion decision, as was seen in Akron.
This, in no way closes debate, discussion, and/or controversies surrounding the abortion issue.
However, the focus of political responses to abortion decisions has shifted from constitutional amendments regarding individual rights to legislative bans on the use of public funds for many types of abortions.
Moral and Political Assumptions
Definitions of morality in this society derive from an historical foundation based on the normative expectations of members of the dominant society. Morality concerns the conscience, character, conduct, intentions, social relations, or general principles of right conduct.
Morality is group supported and there are acceptable behaviors in situations that govern the actions of members of the society.
The society has established a system of rules and regulations and principles by which to govern specific situations. There are minimum and maximum expectations,
so that nonconformity to and/or deviation or violation of these expectations becomes a serious problem.
Nonconformist actions usually produce a reaction from other groups, individuals, and/or control agencies.
The Supreme Court is often called upon to “legislate morality.” Justice Holmes, in an 1897 article appropriate in this analysis wrote, “the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race (Harvard Law Review, 1897: 459).
The moral issues generated in Roe and Akron involve the question, “are there basic values–moral, social, or political–that reflect a national consensus? Answers to this question revolve around: when does life begin?
The Courts have affirmed that there is a point during, pregnancy that the viability of the fetus is such that it has the capability of “sustaining an independent life.” However, this point of “viability” is constantly changing due to advancements in medical technology.
The scope of the medical ramifications of viability is beyond the objective of this report. Yet, it is important to mention that in the eleven year period between Roe and Akron, technology has developed to the level that births during second trimesters are capable of sustaining life, with medical or artificial intervention.
For example, in Roe, Texas argues that life begins at conception, is present throughout pregnancy, and that the State has a compelling interest in protecting that life from and after conception.
The support for and against the answer “life begins at conception” is found throughout the society and is movements such as “The Right to Life” or “Pro-Choice.”
Some medical experts contend that conception occurs within twelve hours of the merger of sperm and egg, and that at this point, the that at this point, the “zygote” contains the full set of forty-six chromosomes required to create new life (Shettles and Rorvik, 1986).
Opposing medical experts contend that it takes ten days after fertilization for the “clonceptus” to become more than a ball of cells at the stage of development. At the end of the fourth week, a heart begins to beat. At the end of the fifth week there is evidence of the formation of the cerebral hemispheres, and they are hollow bubbles of cells. Hemisphere development reaches reptile-grade during the fourth month, and primitive mammal-grade during the sixth month (Zindler, 1986).
Technological advancements, based on embryological data, indicate that conception is a “process” over time, rather than an event. However, the unborn have never been recognized in the law as persons in the whole sense, nor are they considered viable until the third trimester (Roe v. Wade, 410 U.S. at 164-165).
This issue is far from resolution, especially as those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at a consensus.
Akron and Roe involve compelling interests from two vantage points: one, the pregnant woman’s interests, and two, the interests in the potential life of the fetus.
As a religious issue, Tribe (1973) suggests that in Roe, the Court was not choosing between abortion and continued pregnancy, but among alternative allocations of decision-making authority. He suggests that the religion clauses of the First Amendment bar legislators from making judgments about potential life because, given the nature of the problem, views of organized religious groups have come to play a pervasive role in legislative considerations of the issues.
The religious implications depend on which perspective is considered. For example, among the Stoics, there is strong support for the view that life does not begin until live birth. This contention is also held by those of the Jewish faith and a segment of the Protestant community shares this attitude. The Roman Catholic dogma, and official belief of the Catholic Church, recognizes the existence of life from the moment of conception (Gunther, 1980: 594).
Prior to Roe, abortion was illegal in forty-six states. Roe effectively invalidated every abortion statute in effect and legalized abortion on demand.
In the 180 year history of judicial review, no other case has generated sustained public outcry. And, more than a decade after Roe, the controversy shows no signs of resolution (Earll, 1984).
Political issues are “when does human life begin? and what role should the law play in answering the question?” And, there are two sides to answers. On the one hand, abortion laws should protect the rights of the fetus, on the other hand, laws should protect the rights of the mother.
Legislators have been slow to propose answers to the question of the beginning of life. And, it appears that the Akron decision will require state legislatures to study the medical literature to keep current with the latest medical advances.
Due to the controversial nature of the abortion issues, many legislators prefer not to go on record as supporting the law, and therefore, do not revise the statutes (Curry, 1983).
The ramifications of this neglect to repeal/reform state statutes is that penalties for violating these statutes range from suspension of a physician’s license for non-professional conduct, to felony designations, or imprisonment and fines. These penalties are found in states’ professional licensing sections (Curry, 1983).
Political pressure supporting constitutional amendments to end legalized abortions remains strong. In fact, resolutions to ban abortions have been introduced into each session of Congress since Roe.
Assessment of the Arguments
The Supreme Court decision in Akron, based on that of Roe, does not conclusively resolve the question–when does life begin? There are indications that during the first trimester, a woman maintains rights to abort; after that period, the state has a compelling interest in the potential life.
Abortion issues are a mixture of inconsistency, controversy, and noncommitment. It appears that changes in abortion laws can occur quickly–sometimes restrictive, other times liberalized. Or, medical advancements can make changes in definitions obsolete.
All in all, certain issues remain constant. These constant issues revolve around viability, potential human life, states’ interests, privacy, women’s rights, and third party participation.
It is easy to find opposing viewpoints on the abortion issue, as noted above. However, it is often difficult to present balanced opposing views on this complex and sensitive issue.
And, critical assessments require special skills in information, separating fact from opinion, identifying stereotypes, and recognizing ethnocentrism.
Participants in the abortion issue have self-designed identities–pro-choice and pro-life. Pro-choice proponents argue that the individual is central to the abortion debate. A woman should be able to terminate an unwanted pregnancy because the condition affects her body and her life. These proponents believe that the life of the fetus and the life of the mother are not equal and that the life of the woman is given more importance.
Pro-life proponents argue that the fetus is human and is empowered with the same human rights as the mother. Abortion, they argue, is tantamount to murder. They contend that when a society legalizes abortion, it sanctions murder (Szumski, 1986).
The premise of Akron is based on that of Roe, that is that a woman has a right to terminate her pregnancy and that this right is encompassed in her constitutionally protected right to privacy.
On the one hand, the Court recognized that this right is not absolute and that it must be balanced against the compelling rights of the states.
States have rights in two instances. First, a state has a legitimate interest in protecting, the “potentiality” of human life. The Court determined that this right becomes compelling at viability (i.e. , when the fetus is capable of life outside the mother’s womb).
Second, a state has an interest in the health of women who obtain abortions. The Court ruled that this interest is not compelling until approximately the end of the first trimester of pregnancy. It is important to point out that the Court used the inexact “approximately the end” (410 U.S. at 163) because it is not possible to determine the precise periods of trimesters.
The dissenting Justices held that all five City of Akron ordinances should have been constitutional. Justice O’Connor, writing for the dissenters, argued that the trimester approach was not a legitimate framework within which the state could balance fundamental rights to privacy, including the rights to an abortion.
The arguments for and against abortions in these opinions give little consideration to the medical issues and technologies that are making it possible to sustain life outside the mother’s womb at earlier and earlier periods of the fetus’ existence.
Proponents on both sides of the abortion issue have valid arguments. There are instances wherein abortion is a clear alternative to birth. These instances might include rape and incest, fetal abnormality and psychological consequences for the woman, the health of the woman is endangered through pregnancy, among others. Yet, abortion should not be utilized as a method of contraception.
However, the extremist tactics employed by some are not justified. The bombings, arson, and other violent attacks against reproductive health clinics represent a violation of human rights that extremists propose to protect.
The Supreme Court, in Akron and Roe did little to resolve the question–when does life begin? In fact, medical, religious, and political personnel have produced few definitive answers to this lone-debated issue. From the continuing controversy, to debates, to legislative action, it appears that abortion issues are a long way from final resolution.