ABORTION AND THE LAW Moral Conversation Project Assignment: Critically discuss the opinion in Quinlan and the majority and dissenting opinions in Cruzan. Where do you agree and disagree and why? I. Two distinct questions: A. Whether it is wrong, in a case of a given kind, to have an abortion? B. Whether, in a case of that kind, abortion ought to be legally permitted or not, and, if legally permitted, ought the law to regulate it in some way or other? C. Again, one can be “pro-choice” as regards what the law should be (Question B), while believing that in every case abortion is morally wrong (Question A). II Current state of the law: A. Roe v. Wade (1973) is still the governing constitutional decision, although there has speculation that it could be revised or overturned in the near future. B. However, a series of cases (Planned Parenthood of Southeastern Pa. v. Casey, Rust v. Sullivan, Ohio v. Akron Center, and Hodgson v. Minnesota) have found that increasing regulation of abortion passes Constitutional muster: (i) waiting periods, required provision of information, notification of parents if minor, etc., and (ii) restrictions on the use of federal tax monies to fund abortion. II. The Court’s rationale in Roe. A. This is strictly a constitutional question, but the constitution is a kind of moral document, so B. It speaks to the moral question of what the law should be. C. The main ingredients of the Court’s decision: (i) right of privacy (liberty) of the woman, (ii) state interest in the health of the woman, (iii) state interest in the life (or potential life) of the fetus, (iv) denial that the fetus has any Constitutionally-protected rights, (v) a three-part distinction, in relation to (i) through (iv), between first, second, and third trimesters of pregnancy. III. The privacy (liberty) rationale. A. Roe held there is a Constitutionally-protected right of privacy (liberty), B. that this right protects a woman (and her doctor)’s decision about abortion, C. that this right, which is not unqualified and absolute, must be weighed against the state’s interests in protecting the woman’s health and the life or potential life in the fetus. IV. How does the privacy (liberty) rationale work? A. Is there a morally relevant distinction between a right to privacy and a right to liberty? B. What is the relation between these rights? C. Is either (or both) a compelling rationale for a legal right to abortion, restricted, perhaps, as the Court does in Roe? V. Is a right to privacy or liberty the most compelling rationale for the decision in Roe? A. What about equality? The Constitution requires “equal protection” of the law, i.e., that the law treat and protect all as equal citizens. Some scholars have argued that this provides a better rationale for the result in Roe. How might this go? B. To this point, we have treated the question of abortion as though it raised no issues of gender or sexual equality. Is this, however, the case? Would a legal prohibition on abortion have a differential impact on men and women? C. Suppose it would have the result that women’s opportunities are significantly less than what they would be, and, as well, significantly less than those of men, if abortion were legally permitted. D. Might we then mount the following argument? 1. A just society is one in which citizens have equal opportunity, regardless of sex, race, etc. 2. A legal prohibition on abortion would sufficiently restrict womens’ opportunities as to undermine equality of opportunity (as in (1)). 3. A just society would not have a legal prohibition on abortion. 4. Therefore, we should not have a legal prohibition on abortion VI. Rawls’s theory of justice and the “veil of ignorance”. VII. Objections: A. Is this and/or the privacy/liberty argument undermined if the fetus is a person? B. If the fetus is a person, should it be Constitutionally-protected as such? For example, if one holds, on religious grounds, that the fetus is a person, is there some way of defending the position that the fetus should receive Constitutional protection that avoids the separation of church and state?