Analysis of Legal and Political Discourse on Abortion, Suicide, Gun Control and Death Penalty in the United States of America: Roe vs. Wade

Introduction

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness […]” (Declaration of Independence, 1776).

Just as the U.S. Declaration of Independence, both the U.S. Constitution (14th Amendment, Section 1)[footnoteRef:1] and the U.N. Universal Declaration of Human Rights (Article 3)[footnoteRef:2] prescribe a “right to life” to everyone. But what exactly is the right to life and who exactly is everyone? [1: […]nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (https://www.law.cornell.edu/constitution/amendmentxiv) ] [2: Everyone has the right to life, liberty and security of person. (http://www.un.org/en/universal-declaration-human-rights/) ]

This master thesis will look at the right to life on four current and important political and social issues in the United States of America and analyze legal and political discourse on those. It will look at the issue of abortion, especially regarding the question when does the right to life start?, the issue of gun control (who can claim a right to life), the issue of suicide, including doctor assisted suicide and the punishment of attempted suicide, (is there even something like an obligation to life and who does a life belong to?) and the issue of the death penalty (if it is a right, how can one lose it?).

Research Question

This research paper has one main research question and a variety of smaller research questions in the individual subjects[footnoteRef:3]. The main research question is: Is there a tangible, enforceable, accepted right to life in the United States of America and if so, what role does it play? [3: See 2.2]

Methodology and Theoretical Background

Relevance and Aim

Why is this research paper relevant and what are this research papers aims? What makes this specific paper important?

Human rights may very well be the most important rights to focus on right now, not only in the United States but worldwide. From voter suppression and torture to the lack of religious freedom and women’s rights, human rights currently have to be and can be fought for more then ever. The subjects analyzed in this paper are some of the most important issues in the United States right now, especially gun control and abortion are currently on the forefront of political thought and social activism. From the March for our Lives in March of 2018 and Donald Trumps ban on bump stocks, to the 13 potential cases that could lead to the overturning of Roe v Wade and potentially make abortion illegal once again in the United States. But also, suicide (with an important legal decision on the punishment of attempted suicide made in January 2018) and the death penalty, are legally and morally highly contested and important right now. The right to life has the potential to affect every single person located in or travelling to the United States[footnoteRef:4]and thus has to be looked at in great detail. [4: And worldwide but the focus of this paper is the United States]

This research paper aims to create an in-depth view into the right to life and the various aspects of this right. In addition to this, this paper also aims to unite four separate subjects under one theme and show parallels between those subjects. Finally, this paper aims to educate and create awareness to the various subjects and the right to life in general.

Choice of Subjects

As stated before, this paper will deal with four distinct and very different subjects who on the surface don’t seem to have a lot in common. These subjects are abortion, gun control, suicide and the death penalty. Yet, it can be argued that all of these subjects bring something unique and relevant to the question whether or not the right to life actually exists and how this particular right, if it even is a right[footnoteRef:5], is framed in current American political and legal discourse. [5: More on this question later]

Originally, there were four other subjects, in addition to the ones being analyzed in this paper, taken into consideration, namely the subjects feticide, euthanasia, brain death and lynching. Ultimately, however, these subjects did not add significant value to the question at hand, could be included in other subjects and/or had to be excluded for the sake of space and detailed analyses. One might make the argument that for the limited space in this research paper, even four subjects, who have the potential to be as big as these, could be too many and not leave enough room for thorough analyses. However, because each of these subjects bring something unique and relevant to the research question, it was ultimately decided to leave them all in but to only focus on the relevant aspects for the research questions at hand in each of these subjects and not the entirety of the issue. The issue of abortion brings with it the question “when does the right to life start” and “how is the right to life defined”. Gun control begs the question of “who can claim a right to life” and whether or not other rights are more important than the right to life. With Suicide, we will look at whether or not there is even somethings like an obligation to life and ask, “who does a life belong to”. And finally, with the death penalty, this paper will look at the question that if the right to life truly exists and it actually is a right, then how can it be taken away?

What is life? What is a right?

In order to analyze the research question and to have a common basis for the arguments being made in this paper, there needs to be a common definition of the words life and right.

The Oxford Dictionary defines life as “the condition that distinguishes animals and plants from inorganic matter, including the capacity for growth, reproduction, functional activity, and continual change preceding death.” (Oxford Dictionary) Further definitions include the phrase “from birth to death”. There is a fundamental argument in modern society as to when life starts. Some argue that life starts at conception, whereas others would say that life only starts at birth. For the sake of argument, this paper will use conception to define the start of life at the earliest possible moment to simply be able to include as much argument as possible and included the question of abortion, which would be impossible if the right to life would start at birth.[footnoteRef:6] In addition, in this paper “life” will also not simply be defined as purely breathing and existing but will include personal development, growth, choice and the freedom of existance. All in all, life, in the context of this paper, is defined as organic matter with the capacity to change, grow, reproduce and function with the possibility for personal development, choice and free will.[footnoteRef:7] [6: Note: This is not an argument on whether abortion should be performed, and it also does not necessarily concur with the authors’ personal opinion about when life starts.] [7: Life in this context is also limited to human beings and does not incorporate the animal kingdom, even though they obviously have a life, too.]

The second word we have to define is the word “right”. While “right” itself can have various definition from “morally justified” or “being correct” to “a matter of describing directions”, this paper will only look at the word right in the context of legal entitlements and principles. A right is “a moral or legal entitlement to have or do something” (Oxford Dictionary). There are, however, different kinds of rights.

The first distinction is between natural rights and legal rights. Natural rights are those that are not man-made but that occur naturally. They are also called moral rights and are universal, unalienable and not specific to any single group of people or government. Generally speaking, human rights could be considered natural rights. However, it is important to note that some scholars, like Bentham for example, do not believe that natural rights even exist and that all rights are legal right. For the purpose of this paper, natural rights will be considered as existing. In contrast to natural rights, legal rights are man made, alienable and not universal. They are also often called statutory rights or civil rights. These rights differ from country to country and from legal entity to legal entity. Legal rights are bestowed upon someone by a legal entity and can be taken away or restricted by said legal entity. Legal rights can also have certain restrictions on them such as age, education, wealth or physical fitness. One of the most common examples for a legal right is the right to vote.

Another important distinction is between claim rights and liberty rights. Claim rights are those that involve another person in some form, either by having them have an obligation to do something or refraining them from doing something. An example for a claim right is the right to property and the restrictions on others not to steal, harm, destroy, trespass or in other ways interact with your property without your consent. In contrast to that, liberty rights (often called priviledges) are those that allow you to do something without another person having to be involved. One of the most prominent examples for a liberty right is the freedom of religion.

The next distinction is the one between positive and negative rights. Positive rights entitle you to do something (for example the right to vote), whereas negative rights stopp someone from doing something (like the right to not be murdered). And finally there is a distinction between individual right and group rights. Individual rights apply to you alone and are not conditioned on you belonging to any group or entity. Group rights (a term that is also contested and questioned whether or not it actually exists) on the other hand a conditioned on belonging to a certain group. An example here would also be the right to vote ( which is conditioned on your citizenship).

For the purpose of this paper, all of these distinctions between different rights will be taken into consideration in order to answer the research question.

Theoretical Presupposition

The author of this paper has certain assumptions that may or may not turn out to be true but that have to be acknowledged before analyzing the content in order to try to avoid coloring results in a way that might show a political or social bias or at the very least make it known what those biases are. The assumptions are as follows:

1. Human rights are legally enforceable rights that are universal and unalienable
2. Life is more than purely existing
3. There is a right to life
4. The right to life is a natural right and not “just” a legal right
5. The right to life is a liberty right
6. The right to life is a positive right
7. The United States of America are a constitutional state
8. he United States adhere to the rights prescribed in their own constitution, amendments to that constitution and the Declaration of Independence
9. The United States furthermore generally try to adhere to the Universal Declaration on Human Rights and the rights prescribed in them.[footnoteRef:8] [8: The author fully acknowledges that the United States of America has committed human rights violations.]
10. Language influences actions

Theoretical Background

“Discourse is not the majestically unfolding manifestation of a thinking, knowing, speaking subject, but, on the contrary, a totality, in which the dispersion of the subject and his discontinuity with himself may be determined.” (Foucault 1972, 55)

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The basis for this analysis are the theoretical works of Michel Foucault (Archeology of Knowledge) and Norman Fairclough (Critical Discourse Analysis - The Critical Study of Language (Second Edition)). Discourse is more than just discussions or conversations. In critical criminology[footnoteRef:9], discourse is the relationship between words and actions and in the case of Foucault and others[footnoteRef:10] also how this relationship changes over time. Discourse theory believes that discourse can “construct[footnoteRef:11]” truth, and that discourse and language have a profound effect on political actions and ideas, thus the idea that establishing a discourse could potentially influence policy becomes possible and potentially even probable. [9: And other social sciences] [10: Like Siegfried Jäger for example] [11: The author put construct in quotation marks because the idea of “constructing” truth is controversial and questionable]

Method

In order to analyze the role of the right to life in the American legal system this paper will look at the 4 distinct subjects mentioned above. For each of these subjects, the first step is a short look at the historical and legal background surrounding the issue, including but not limited to timelines of laws enacted or abolished and the historical background as to why these laws were enacted or abolished. This should enable the reader to have a basic understanding of what the current law is and why it is the way it is. It also creates a basis for understanding the legal and political arguments. The next step is to look at the facts and figures. This is done to create an understanding how big of an issue each of these subjects are and highlight the magnitude of the subject in question.

The next step is an analysis of the current[footnoteRef:12] legal and political discourse. Because the subjects discussed in this paper are all very different and have different roles[footnoteRef:13] in current U.S. discourse, the individual subjects will not always follow the same framework, when it comes to what is going to be analyzed but will follow the same framework when it comes to how things are analyzed. [12: Current in this case refers to any discourse on the subject in recent years and not further back than the year 2000. ] [13: For example, there are/were big marches for/against gun control, but no such thing for or against the death penalty. ]

The following things will be analyzed in each subject.

Abortion: A Trump speech, 2 news paper articles, a “Students for Life” video, a speech by actor Mark Ruffalo and a variety of protest signs

Gun control: 3 shorter “March for our Lives” speeches, 2 longer speeches against gun control and a variety of protest signs

Suicide: 2 court cases from Maryland and their potential consequences, an article by the heritage foundation[footnoteRef:14], 2 separate newspaper articles and a variety of protest signs [14: A conservative think tank]

Death penalty: newspaper articles, quotes by presidential candidates from 2016, parts of the website from the “National Coalition to Abolish the Death Penalty” and a variety of protest signs.

The articles and speeches that were selected for the analysis, were selected based on their relevance for the subject in question, their importance, and their stance. Each subject will have at least two pro and two contra pieces of writing/speaking on the subject in question. To ensure a fair distribution of content, the material to be analyzed was randomly selected on the basis of their stance on the subject and their length. Moreover, the pieces were selected on who was speaking as well and what reach the material potentially could have[footnoteRef:15]. Because some of the subjects are more on the forefront of current political thought than others, not all will include current political speeches on the subject. Additionally, because not all of these subjects currently have significant legal cases for or against them, that have already been decided, not every subject will include a legal case. In order to not only analyze political speeches but include a much larger variety of people and something that can be analyzed for all of these subjects, it was decided to include and analyze protest signs as well. Protest signs give a glimpse into political thought as well as narrowing large arguments into small, precise statements and thus allow for an enlarged overview of political and sometimes legal discourse. [15: It makes little sense to compare a speech by Trump to an article in a local, rural Kansas daily newspaper, because their reach is inherently different. However one can compare a Trump speech on gun control to speeches from the March for our Lives, because the potential reach is similar.]

In the analysis each of the following things will be analyzed.

1. What words or phrases are used and how are they used?
2. What other rhetorical tools are used and how are they used (e.g. allegories, similes, sarcasm etc.)?
3. What form of speech is used?
4. What kind of visual rhetoric is used, if any, and how is it used?
5. What are the themes utilized and how are they utilized?
6. What facts are used or what is presented as a fact?

Finally, this thesis will conclude on the basis of the analysis what the role of the right to life is in the individual subjects, as well trying to find an answer to the focus question of these subjects. In a last step this paper will compare the results of the individual subject in the conclusion and make an argument what the individual results of the subjects in question mean for the role of the right to life in the United States of America in general.

Subject 1: Abortion

In this chapter we will look at the right to life in the realm of abortion. The two main questions we will look at here are: “when does the right to life start?” and “how is the right to life defined?”.

Historical and Legal Background

“[…] this guy is wearing an apron, like a butcher's apron. He says, ‘Give me the money,’ and I hand him the money and then he hits me. He punches me in the face and I blacked out. When I woke up I was in a lot of pain. I was lying in a pool of blood, and the guy wasn't there anymore.[…]” (Madera, 2018)

Just as America did when it was still a British colony, the newly independent United States of America applied British common law[footnoteRef:16] on abortion even after 1776. Under British common law, abortion was illegal after quickening, a term used to describe the moment women first feel the fetus move in utero. During the 19th century starting at around 1820 more and more laws were put into effect in virtually all states and by 1900 abortion was a felony in every single state. The push to criminalize abortion came particularly around the 1860s and onward, with laws like the Comstock Laws[footnoteRef:17]. There are several reasons why abortion became fully illegal. One is that medical knowledge became more advanced and quickening was found out to be mostly irrelevant for the fetus, thus creating the argument that if the human fetus was developing from conception and quickening was not more important than any other step in development, then abortion mustn’t be performed ever because if abortion was wrong after quickening it must also be wrong before. Additionally, the idea of the value of human life became ever more important (Mohr, 1978). Interestingly, early women’s rights activists and suffragettes were just as against abortions as doctors and politicians, albeit for different reasons, but did also not want to legalize abortions. [16: More on this in Subject 3: suicide] [17: A law to forbid sending anything that could be construed as lewd, obscene or lascivious through the U.S. postal service, including but not limited to sex toys, personal letters including sexual contents, contraceptives and abortifacient (substances that induce miscarriages)]

From the mid-1960s abortion laws started to change, serval states, starting with Colorado, started to allow abortions in cases of rape, incest or danger to the women’s life. [footnoteRef:18][image: ] [18: Source: https://www.slideshare.net/peterpappas/regulation-through-the-years-by-chenoa-musillo-olson-and-sarah-wieking Slide 13]

In 1965 the last of the Comstock Laws was abolished in the case Griswold v. Connecticut. But still before the landmark case Roe v Wade, abortion was illegal in 30 states, 16 states allowed abortions under certain circumstances (rape, incest, danger to women), 3 states allowed abortions but only for residence and New York was the only state were abortion was legal for everyone. [footnoteRef:19] Roe v Wade changed all of that. The case made it illegal for any state to interfere with a women’s right to choose and subsequently made abortion legal in all 50 states. Interestingly, the reasoning behind the decision was not an argument surrounding the right to life or a similar idea, but the right to privacy. Moreover, the court decision included a 12 week[footnoteRef:20] restriction to abortions, except in cases of danger to the women, something that was loosened in the 1992 case Planned Parenthood v Casey. [19: See map above] [20: Based on the idea of viability of the fetus]

“Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall 'deprive any person of life, liberty, or property, without due process of law.' The controlling word in the cases before us is 'liberty'” (Planned Parenthood v. Casey, 1992)

There are currently 13 cases[footnoteRef:21] before circuit courts around the United States, the last step before reaching the Supreme Court. Each of these has the potential to overturn Roe v Wade, especially with the conservative majority on the Supreme Court. However, as of January 2019, Roe v Wade still stands and if these cases make it to the Supreme Court is just as unclear as a potential decision in these cases would be. But it is important to note that several states would most likely make abortion illegal, should Roe v Wade be overturned. [footnoteRef:22] [21: https://www.vox.com/2018/9/7/17818458/brett-kavanaugh-supreme-court-nominee-abortion-confirmation ] [22: Source: http://www.msnbc.com/morning-joe/abortion-rate-lowest-roe-v-wade ]