Political Science

The issue of abortion has been around thousands of years According to Websters New College Dictionary, an abortion is the induced termination of pregnancy before the fetus is capable of independent survival.  In 1973, the landmark case Roe vs Wade made it legal for a woman to have an abortion.  The decision to legalize abortion made it possible for a woman to choose her destiny.  The repercussions of this decision are such that even today the case of Roe vs Wade is often mentioned whenever the topic of abortion is discussed.  As such, there have been different perspectives on this issue, urging the courts to delineate between personal rights of the individual and the pressures of mass democracy.
In establishing the role of the judiciary, it is important to first examine the jurisprudential precedents on this issue and the legal basis for the grant of such right to abortion.  The foremost case, as previously mentioned, is the case of Roe vs Wade, which was decided in 1973.  The case of Planned Parenthood of Southeastern Pennsylvania vs Casey is one of the more controversial cases in recent jurisprudential history owing to the fact that it tackled the equally controversial topic of abortion.  The basics of the case revolve on the Constitutionality of a number of regulations set by the State of Pennsylvania with regard to abortion.  It is clear that the judiciary has always maintained the intrinsic right of a woman to get an abortion but with the increasing pressure from the public it seems that the courts must take a firm role in this.
In delineating the role of the Judiciary, one must first examine the social context that abortion was seen in previous times.  In Ancient Greece, abortion was used as form of family planning (Costa pg 1).  It was not until the 1500s that abortion was considered a sin based on the Catholic belief that the moment of conception was the determination of viable life (Costa, pg 1).  In the early 1600s the determination of life was decided by the quickening.  This was the moment when the mother could feel the child in her womb (costa pg 3-4).  By the 1800s, abortion were only legal if the mothers life was in danger.  Through the 19th and 20th century this was a common stance.  In the United States, abortion was illegal and many women were putting their lives at risk because they could not terminate their pregnancies safely.  By the end of the 1960s, an estimated 200,000 to 1.2 million women were having illegal abortions (costa pg 20).  The right for a woman to control her own destiny when it came to an unwanted pregnancy became principle of constitutional law (Hull pg 133-134).
This can be seen in the previous court rulings on the issue and how the Supreme Court has changed its stance on its legality over the years.  Though many have claimed that this was because the new justices that were appointed to the Supreme Court were recognized conservatives, many legal publicists have stated that it was the opportune moment to challenge the long standing decision in Roe V Wade.  In line with this decision, the Supreme Court in delivering its plurality opinion mentioned the previous challenges to the ruling in Roe V Wade.  The Supreme Court argued that the right to abortion is closely based on the Due Process Clause of the Fourteenth Amendment ( HYPERLINK httpwww.law.cornell.edusupct-cgiget-us-cite505833 o httpwww.law.cornell.edusupct-cgiget-us-cite505833 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
nor shall any State deprive any person of life, liberty, or property, without due process of law

The right of a person to decide whether to bear or not to bear a child is intrinsically connected to the right of privacy that such cannot be violated without a close application of the Due Process requirements.  It was this decision that basically upheld the main tenets of the Roe case ( HYPERLINK httpen.wikipedia.orgwikiRoe_v._Wade o Roe v. Wade Roe v. Wade,  HYPERLINK httpen.wikipedia.orgwikiCase_citation o Case citation 410 U.S. 113 ( HYPERLINK httpen.wikipedia.orgwiki1973 o 1973 1973). 
Because neither the factual underpinnings of Roes central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973 . (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833)

Another issue that was tackled was that of spousal notification which the Supreme Court felt could lead to increased instances of substance abuse that would be prejudicial to many women.  In arriving at this decision, the Supreme Court cited the doctrine of undue burden ( HYPERLINK httpwww.law.cornell.edusupct-cgiget-us-cite505833 o httpwww.law.cornell.edusupct-cgiget-us-cite505833 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).  In concluding the plurality opinion, the Supreme Court reiterated the long standing principle of Stare Decisis ( HYPERLINK httpwww.law.cornell.edusupct-cgiget-us-cite505833 o httpwww.law.cornell.edusupct-cgiget-us-cite505833 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).  It explained that no matter how unpopular a decision might be, it still has to abide by the legal precedents that have been previously lain down.
It is clear from this point that the Supreme Court has tried to balance the interests of the individual and the mass democracy, ensuring that the sacred right of an individual is persevered while respecting the right of the majority to voice out their objections.  The Supreme Court has essentially established this by arguing that the right to choose is every womans right.  The contention that a fetus is not a person until it can sustain life on its own is the focal point for this argument.  The mothers right to choose to serve as a surrogate for the next nine month or not takes precedent over the possible future of the fetus.  It has been contended that aborting the fetus is not murder.  It is not only legally right but it is also morally right to get an abortion.  It is morally correct to think about the consequences of ones actions.  It is morally right to think of the greater good  A woman who is physically, mentally or emotionally equipped to care for and love a baby.  It is further argued that harassing a woman into not getting an abortion is morally wrong and violates her constitutional right to liberty and the pursuit of happiness.  Some may say that there are serious health implications involved with getting an abortion.  A person should be given the choice to see a doctor and have an abortion done by a professional than go back to the days when illegal abortions were the only option for women who could not proceed with a pregnancy.
From the foregoing, it is clear that the role of the judiciary lies in upholding the rule of Law.  The right to choose is in the constitution.  Landmark cases like Roe vs Wade have made it possible for women to choose their destiny.  In a study conducted by WorldPublicOpinion.org, of 18 major nations including the United States, China and Britain, almost all the nations discouraged using criminal penalties, as a way to deter abortions.   While it has also been argued that correlative to the right to live is the right to decide when to die.  It is interesting to point out that suicide or even attempted suicide is not a crime that is punishable under Criminal law (Ignatoff 2005).  In light of this, it can safely be argued that there is no life that is taken by an abortion.  There are no inviolable rights that are attached to the fetus at that stage of its development.  In fact, there is even no gender or civil right that is given to such a fetus.
Given this perspective, it must be asserted that the right to have an abortion resides solely in the mother of the fetus.  The mother has been equipped by the Constitution with the right to make her own decisions.  The burden and the responsibility, as well as the potential consequences, should therefore belong to the mother.  If the mother decides that an abortion will result in an improvement of her welfare then she should be given the right to make that decision on her own.  Having established that the right is intrinsic in a woman, there is no body, not even the judiciary that can force these individuals to surrender their rights just to silence the clamor of mass democracy.


Conclusion
    In conclusion, role of the Judiciary in dealing with abortion issues and its pivotal importance in balancing claims made on the basis of liberty and of democracy is with regard to the application of the law.  As shown in this discussion, there are fundamental rights that must be respected and the Courts of Justice are tasked to uphold these rights and ensure that they are not infringed upon.  Until there is a new ruling on this matter or a new constitution, it remains the solemn obligation of the Courts to apply the pertinent law on that matter.
It must be remembered that the role of the judiciary has been made clear that it must implement the law.  It has been shown that the right to an abortion is intrinsic in the woman.  The absence of rights that can be exercised by the fetus necessarily means that it is the mother who is granted that right.  As such, it is the mother who should be allowed to make the decision and not the courts and not mass democracy.  While it is certainly agreeable that the right to abortion should be given to the mother, there should be certain qualifications as no right can be exercised absolutely.  An abortion can therefore be allowed in certain cases that are deemed acceptable but in no way do the unduly restrict the right of a mother to choose whether or not to exercise the right to an abortion. 
It is recognized, however, that there are legitimate claims by mass democracy when it comes to the role the courts must play.  When the right to an abortion is exercised capriciously and whimsically, it can lead to many problems.  When the right to an abortion is totally prohibited, it can also mean the suppression of certain intrinsic rights.  The proper solution to this dilemma should therefore be that the right to choose should belong to the mother but she must always be well informed of the consequences and should not be allowed to have an abortion if it is clear that such is done on a whim or with malice.