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 medical care practitioner–patient relationship,
not with abortion as a right independent of the medical care
practitioner–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 hundred 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 had their roots in laws 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 limited 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.