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The Politics of Abortion

The U.S. Supreme Court has never ruled that abortion is legal or, conversely, that it is illegal. Abortion itself is not a constitutional issue. The Supreme Court decisions that have shaped access to abortion have been based on the legal theory of privacy. The Court has been concerned with the extent to which legislatures may regulate the physician-patient relationship, not with abortion as a right independent of the physician-patient relationship. Legally, it matters little that the cases that are prosecuted concern abortion rather than orthopedic surgery. Politically, there is no strong lobby group pushing legislatures to regulate or deregulate access to orthopedic surgery. Concerned citizens do not seek injunctions to prevent strangers from having an arthroplasty.

Over the past several thousand years, the legality of abortion has changed with cultural norms. The antiabortion laws that were found to violate a woman's privacy unconstitutionally in Roe v. Wade were passed in the nineteenth century to protect women from the medical hazards of unsterile abortions. Abortion was legal when the Constitution was adopted but had been illegal in earlier periods. It is meaningless to argue that there is a historical justification for either banning abortion or making it universally available. Medieval societies banned abortion, but they also banned medical treatment in general. Societies that allowed abortion were frequently oppressive to women in other fundamental ways. Whatever legal course society chooses for abortion must be rooted in contemporary needs and values.

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