The study of abortion from comparative criminal policy

• Main Authors: su-fun Wu, 吳蘇芳
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2007
• Online Access: http://ndltd.ncl.edu.tw/handle/32872608219651228506

碩士 === 國立中正大學 === 犯罪防治所 === 95 === Abstract The question of abortion leads to the conflict between women''s and fetal rights has been a topic of debate since the turn of the century.Pro-life Groups war upon Pro-choice Groups which has a deep influence on the abortion criminal policy in many countries. Recently, we try to amend the“the Eugenics and Health Care Act”in Taiwan, but it''s delayed by the induced abortion controversy. In this paper, I will focus on issues of abortion from different angles including moral,medicine,biology and the comparison criminal policies and propose my personal statement for the reference of the abortion criminal policy in Taiwan by means of the cases in American and German federation supreme court''s important decisions about abortion all previous years. Since in the 1973 Roe v. Wade case, abortion has been legalized because the United States Supreme has stuck down states laws banning abortion in the first trimester, according to the Due Process Clause of the Fourteen Amendment to the United States Constitution, which declares “nor shall any State deprive any person of life, liberty or property without due process law.”, ruling that such laws violated an implied right to privacy and right for woman to decide whether or not to terminate her pregnancy in the United States Constitution. Therefore, the legalization of abortion in the Roe v. case not only shows a significant number of abortions in American but also results in the argument between the conservatives and supporters of federalism for the future 30 years. Consequently, the United States supreme makes many important judgments upon the abortion issues, including the case in1973 Roe v. Wade, the case in 1989 Webster v. Reproductive Health Services, the case in 1992 Planned Parenthood v. Casey, the case in 2000 Stenberg v. Carhart,and “the Prohibit Partial–birth abortion Ban Act” which was passed both chambers of Congress and in the Senate and was signed into law by President George W. Bush in 2003. Here are some developments of the U.S. abortion criminal policies in recent 30 years:(1)Woman has the constitutional right for abortion, but the right of abortion is just implied in the United States constitution.(2)The original intent of the constitution is to protect “people” but not including the unborn, so the State cannot restrict a woman''s right to an abortion during the first trimester.(3)One abortion procedure“ undue burden ”,on a woman''s right to choose abortion, upheld by the court is so board-encompassing mental health problems as well as physical ones- that will lead to consecutive lawsuit.(4)The later abortion is still controversial. In order to preserve the health of woman under certain circumstances, the act must contain exception to protect a woman''s health or life.(5)The abortion of adolescents should obtain parental or guardian''s authorization.(6)The pregnant woman needs not to tell her spouse or require his agreement before abortion.(7)Requiring waiting periods before abortion in the States laws is not against the constitution. The German Federal Supreme Court also addressed the issue of abortion in 1975 and 1993 separately before and after the reunification of Germany. In 1995, the German legislature implemented a system-the Pregnancy and Family Assistance Act- where a woman having an abortion within the first twelve weeks of the pregnancy does not face legal sanction if she undergoes mandatory counseling which has one of its goal to represent the case that the developing fetus is an independent human life, and obeys a 72 hours waiting period. Below are some items according to the correlative court decisions as well as the present abortion laws: (1)The unborn has a right guaranteed by the constitution；therefore, the fetus deserves legal protection through its development. (2)Because can''t look forward to women''s sacrifice excessively，so determine to legalized abortion up to 12 weeks of pregnancy for women''s demand, that is to say, woman can makes the final decision to have a child. (3)The induced abortion of the medical factor combines the restriction without time.(4)Based on the German social welfare system, the government should create a good environment for the pregnant women and children education. (5)When Legislative institution passes“the Pregnancy and Family Assistance Act”, it should simultaneously amend correlative criminal act with a way of“packaging law”, which packages different types of laws, such as directives, decrees, decisions, and regulations to maintain the integrity of legislation. By the way, abortion is legal in Germany； nevertheless, religion has a great influence on woman''s abortion because Catholic and Christian are two of the great religions of Germany. The suggestions in my paper that comprise the correlative judgments about abortion of the United States and German Supreme as well as the present laws in Taiwan are as follow: 1、Because people in Taiwan are not conscious for illegal abortion, I think abortion should be legalized in 12 to 16 weeks to respect the sovereignty privacy of woman. 2、The later abortion is harmful to woman, and it''s also cruel to the embryo. Besides, we can infer that there''s an implied right to respect the fetus in our constitution. Therefore, it is necessary to prohibit the later abortion unless to save the life and health of the woman. In my opinion, the present law that woman has the right to abort within 24 weeks should be shorten. 3、Spousal authorization is not require for a married woman to obtain an abortion. 4、The abortion of adolescents should notify their parents. 5、It''s good for the woman and the fetus to have waiting period counseling. 6、Our government should make more social welfare policies to encourage women having children. 7、The chapter of abortion in criminal law needs some amendment according to the present social situation. In order to return the normal development of ordinary criminal law and avoid the growth of special criminal law, we can follow the way of German “packaging law”, which can amend some chapters about abortion in criminal law as well as “ the Eugenics and Health Care Act”，enabling satisfactory completion of the law.