The issue of abortion like many legal concerns is also an ethical one. The most famous
legal case concerning abortion is Roe v. Wade (1973); this may
be related to the fact that it is perhaps the most politically polarizing U.S.
Supreme Court case in recent history. However, initially after its decision in
1973 public approval was met by a majority of men and woman—Republicans (68 percent)
even more so than Democrats (59 percent)—according to a Gallup poll. This
convergence of public support with legal ruling was short-lived. By the late
1970s, the abortion issue became entangled with partisan politics and the rise
of the religious Right, which has to this day divided our country and
especially the Republican Party. In a tactic known as divide and rule,
politicians could play these newly created single-issue voters against one
another in a largely incoherent, semantic debate between “pro-life” and
“pro-choice”. As Ronald Dworkin pointed out:
“[P]eople’s opinions about abortion do not come in only two
varieties, conservative and liberal. There are degrees of opinion, ranging from
extreme to moderate, on both sides, and there are also differences of opinion
that cannot be located on a conservative-liberal spectrum at all.”
For example, whether a later abortion is worse than an
earlier one does not appear to be distinctly either liberal or conservative.
What constitutes an ethical abortion—if such a thing can be said to exist at
all—has been politically linked to the legal question: Does a
woman’s right to an abortion fall within the right to privacy protected by the
Fourteenth Amendment? The Supreme Court from Roe v. Wade (1973)
through Webster v. Reproductive Health Services (1989) has
come to answer this question with a nuanced Yes. The decision in Webster may
have reaffirmed the constitutional concept of right to privacy, utilized in Roe
v. Wade, but it has renewed abortion as a political issue on the state and
local levels.
Skinner v. Oklahoma ex rel. Attorney General (1942)
This case concerning the involuntary sterilization of repeat criminal offenders of “moral turpitude” was decided, interestingly enough, when across the Atlantic the Germans were
practicing a most infamous process of negative eugenics. A basic definition of
justice is treating like cases alike. The court having found stare
decisis in Buck v. Bell (1927) may have found the due
process protected by the Fifth and Fourteenth Amendment lacking in this case
since “the defendant is given no opportunity to be heard on the issue as to
whether he is the probable potential parent of socially undesirable offspring”.
Ultimately, however, Justice Douglas did not cite the lack of due process or
even Skinner’s concerns over the cruel and unusual punishment as material to
the court’s decision, but rather found that the statue constituted a denial of
equal protection guaranteed under the Fourteenth Amendment since some offenses
of equal magnitude and otherwise identical punishments were omitted from the
statue (e.g. white-collar crime). Treating embezzlement in a manner that is
grossly different from larceny seems to be unjust.
The purpose of the statue under review
was to eradicate undesirable genetic propensity for criminal activity of “moral
turpitude”. Putting aside the “view of the state of scientific communities”,
this preventive theory of crime and punishment—which is commonly utilized in
the defense of the death penalty—is arguably immoral. As Oliver Wendell Holmes,
Jr., who had wrote for the court in Buck v. Bell, stated that the
preventive theory is immoral since it “furnishes no measure of the amount of
punishment, except the lawgiver’s subjective opinion in regard to the
sufficiency of the amount of preventative suffering… and treats man as a thing,
not as a person; as a means, not as an end in himself” (cf. Immanuel Kant’s Grounding
for the Metaphysics of Morals).
