Abortion

By Chandrashekar (Chandra) Tamirisa, (On Twitter) @c_tamirisa

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Issue

A majority of the states in the United States appear to be trending toward making abortion illegal by severely restricting financing for abortion both through public and private health insurance plans.

Relevance to the People

Abortion has been at best a hot button political issue and at worst an explosive social issue in the United States, in particular, since the Supreme Court decision in favor of the plaintiff Jane Roe in the the 1973 Jane Roe v. Henry Wade case. The social context of the case is the cultural shift in the United States since the ’60s through 1973. The political context of the case is the women’s rights movement since the turn of the 20th century. The legal context of the case can be summed up in three documents: (a) The Declaration of Independence in 1776 (“…Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”); (b) The Fourth Amendment to the Constitution of the United States that provides an implied right to privacy; (c) The Fourteenth Amendment to the Constitution which extends the Bill of Rights to the states. The economic context of the case is the entry of women in large numbers into the workforce, particularly since the ’80s after President Ronald Reagan appointed Sandra Day O’ Connor as the Associate Justice of the Supreme Court of the United States.

The founding values and the Constitution of the United States are unequivocal: the rights of the unborn are equal to the rights of the born.

The specific case history of Roe v. Wade, however, is not applicable to the maneuvering of about 27 states-to-date to restrict abortion once again in the United States. Most states are not criminalizing abortion as Texas had done in Roe v. Wade, but are attempting to cut off the financing for it to discourage abortion through health insurance. Meaning, abortion would remain legal and the law of the land per Roe v. Wade as long as it is feasible to obtain it through private means unrelated to health insurance, such as being able to pay a doctor directly out of pocket and/or doctors volunteering to perform abortions.

What the Department of Justice Must Do?

Should the states pass laws to constrain abortion through insurance companies, United States must sue the states for violating the law of the land.

What the Supreme Court could decide?

The Supremes, 9 appointed judges, interpret the nation’s laws for their constitutionality. Lower courts decide specific cases. The Supreme Court does not make the laws. Judicial independence in the Supreme Court relies completely on jurisprudence and is not subject to the will of the people. Only the United States Congress and the President are. The Supreme Court will interpret the law as it sees fit upon a fair and transparent hearing of the case open to the people and after due, closed door, deliberations. This is a system of checks and balances that has worked well since 1789.

Because the states will have indirectly violated (civil violation) Roe v. Wade should they erect health insurance barriers to abortion, the Court could decide to rewrite Roe v. Wade to be more consistent with the legal context of that case as summarized above. It could:

(a) Opine that abstinence among minors through science education in tax-payer funded schools must be mandated and leave it to Congress (“We the People”) to decide;

(b) Opine that contraception research must be encouraged and leave it to Congress (“We the People”) to decide;

(c) Opine that the morning after pill should be sold over the counter across the United States and that the insurance companies must cover those costs and leave it to Congress (“We the People”) to decide;

(d) Rule that abortion in the first trimester, preferably within the first month during which pregnancy could result and immediately upon discovery of pregnancy by any minor child or woman is legal but illegal thereafter, exceptions to be made only based on expert medical judgment obtained anywhere in the United States or abroad, toward the expenses of all of which all insurance plans, private and public, must pay.

What the Congress and the White House should do?

(a) Write into law federal funding and subsidies for states to promote abstinence among minors through science education in tax-payer funded schools;

(b) Write into law that the morning after pill should be sold over the counter across the United States and that the insurance companies must cover those costs, anywhere in the world those products are legally sold, as a clarification of the new health care law;

(c) Write into law federal funding for contraception research.

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