The constitutional issues presented by the debate over Roe v Wade are fascinating. Lawrence Tribe reviews those questions in Abortion: Clash of Absolutes. Tribe is professor of constitutional law at Harvard Law School. He contends the debate revolves around two absolutes: the right of the fetus to life and the right of the woman to control her body.
This conundrum is unique to the 20th century. In early post-revolutionary America abortion was legal and common. The first law against abortion was not passed until 1821 when abortion was prohibited only after viability or movement (usually the 4th or 5th month). Most early abortion laws were intended to protect the mother. The death rate from abortions was as high as 30% in hospitals, but abortions continued to increase until by the mid-19th century it was estimated that there was 1 abortion for every 4 live births. (Ironically, it is now calculated that a woman is 23 times more likely to die from childbirth than from a 1st trimester abortion in the 1990s; hence it has been argued that the life of the pregnant mother is always in danger when compared to the risk of abortion.)
Aristotelian and Rabbinic traditional doctrine theorized the fetus was not human until "animation" (40 days for a male and 80 days for a female after conception). Animation was defined as "infused with a soul."
Abortion laws gradually became more restrictive during the early 20th century until, ironically, pressure from the clergy resulted in a relaxation of those laws in the early 60s. The measles epidemic and the thalidomide tragedies had forced many women to seek illegal abortions and the clergy were appalled by the result. They formed an organization to refer women to clinics where they could obtain safe abortions. Paradoxically, it was Governor Ronald Reagan who was one of the first governors to sign into law a bill permitting abortion on demand (1967).
After placing abortion in historical context, Tribe delves into its constitutional aspects, dealing with each argument in turn from all sides. It is again ironic (so much of the issue is) that Roe v Wade, considered by some a notorious example of judicial activism, was written by a conservative justice (Blackmun), under a conservative Chief Justice (Burger), who was appointed by a conservative president (Nixon), precisely to reverse the perceived avalanche of "activist" decisions.
Generally, the pro-abortion camp has based their constitutional argument on unenumerated (not explicitly stated) privacy rights found to be flowing from several on the Bill of Rights. Precedent includes other court decisions including Skinner v Oklahoma, 1943, which guaranteed the right to reproduce, i.e. the state could not interfere with the parental decision to have a child; and Griswold v Connecticut, 1965, which overturned a Connecticut law prohibiting the use of contraceptives.
Anti-abortion spokesmen, Judge Bork among others, have argued the right to privacy is no where stated in the Constitution; that abortion and the right of a woman to do what she wants with her body are not specifically mentioned in the Constitution. Tribe considers this reasoning flawed. If the right of privacy to control one's body is not firmly entrenched as a constitutional principle, then government could legally and constitutionally mandate abortion at some future date for some ostensibly socially desirable goal such as population control or eugenics. Such is currently the case in China.
This prospect is not so far-fetched as it may seem. For years states have forced the sterilization of mental defectives, and one must remember Justice Holmes' famous argument that "three generations of imbeciles are enough." In fact, the state of Virginia required forced, involuntary sterilizations of the "unfit" as late as 1972.
On the other hand, if privacy and a woman's right to chose become the predominant ideology, then government loses the right to control an individual's body and ultimate liberty resides with the individual.