Abortion is not legal nor is it illegal. The Supreme Court Ruling of Roe v Wade was officially considered a moot point because Roe having fled to another state to obtain an abortion before her pregnancy was too far along was no longer pregnant when this case came before the court. She no longer had just cause against the state of Texas but the state of Texas had filed criminal charges against the doctor who was going to perform the abortion in the first place and that is the case Supreme Court ruled on and they ruled that with out a pregnancy there could be no abortion then leaving no attempt to commit a crime.
This dismissal of the states charges did however bring to light violations of Roe’s Fourteenth Amendment right to not be deprived of life, liberty, or property, without due process of the law. That is to say that since another state ban on abortions after 8 weeks meant she couldn’t wait she was denied due process of the law that could allow her doctor to perform the abortion.
A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
The ruling that the state of Texas had violated Roe’s Fourteenth Amendment rights led to the review of whether or not the Supreme Court to enforce the state to legalize abortion on the premise that any future violation of Constitutional rights would be avoided.
When reviewing cases for legalizing abortion the Supreme Court considered many factors concerning abortion from ancient Greece and Rome’s views, ancient religion’s views and religious doctrine to present beliefs. Going all the way back to the Hippocratic Oath which states “I will give no deadly medicine to anyone if asked nor suggest any such council, and in like manner I will not give a woman a pessary to produce abortion”. This idea was of course born of protecting the fathers rights to the child.
The case for or against abortion is based on whether or not it is murder of a fellow human being. A definition of a human being is needed which in turn requires agreement on when life begins.
Aristotle believed that only Gods and human beings were moral and legal persons both having rational minds. He believed that upon ‘quickening’ which is defined as movement in the womb a fetus becomes sensitive to it’s surrounding, it is now a sensitive soul. He believed at 6 months a fetus develops the rational mind and is now a person.
This is the what the Supreme Courts used as a standard for viability when they made it a law in 1973.
This view was shared by the Catholic Church until 1917 when they made the belief that life began at conception into Canon Law.
In 1765 Sir Edward Blackstone took the previous views of Aristotle and the Catholic Church and his books were looked to by our founding fathers at the birth or our nation when writing the documents that define us.
Jewish tradition quotes Genesis 2:17 “God breathed into his nostrils the breath of life, and man became a living being” to argue that until birth a fetus was not a person.
For 600 years English law agreed. The 17th century jurist Sir Edward Coke took this as his case for abortion not being murder because the fetus was in the womb and therefore not a person and only a person can be murdered.
The Judges conclude that matters of the soul and of the mind were under the jurisdiction of religion and philosophy and therefore could not be argued in their court. Stating judicial rule protecting the rights of every citizen of every state granted to them in the Constitution was for the Supreme Court.
Thus the decision based on ruling that the state of Texas had violated the Fourteenth Amendment rights of a citizen of their state it was concluded that it was un-Constitutional for the state to ban abortion.
It was so ordered.
In other words they passed the buck. No law was written, no statute was put in place and abortion is still just sitting on the table until someone picks it up and does something with it.