I’m going to begin by making three statements:
- Roe v. Wade is, for the moderate future, settled law. No politician currently running is going to overturn it.
- Science gives us no clear, simple, easy-to-understand answer here.
- There are a lot of people on every side of the discussion who will never be content with any compromise.
If you can accept each of these statements, there are two conclusions that can be drawn. Each is true for one side of the debate.
– If you believe abortion is inherently a bad thing and you wish to reduce the number of abortions that occur, you’re wasting your time pursuing a direct political solution. Instead, your best course of action is to work to reduce the number of abortions by taking positive actions. Among these is supporting charities and programs that give real assistance to pregnant women and single mothers, and/or to promote adoption as a viable alternative. You cannot, however, change the law.
– If instead you believe that abortion is effectively the removal of tissue, and that a gestating embryo is not the same thing as a person, your focus is almost exclusively the welfare of the woman (unless or until a child is born). As such, while you may see little use in adoption initiatives, you will certainly value programs that support women’s health and well-being before, during, and after pregnancy.
I am struck here by the vast amount of common ground existing between the two poles of a violent debate. We get stuck on the differences, but it’s the similarities that provide us with a meaningful and productive basis for moving forward toward a single common goal: that of helping people who are in difficult circumstances. I have come to believe that this is the ideal direction for all well-intentioned people on every side of the discussion.
This is a lovely conclusion, but its validity depends entirely on the truth of my initial statements. Let’s explore them and see if they hold.
Roe v. Wade is settled law.
First, let me begin by stating the obvious: There is no law that can stand forever against the weight of public opinion. Law is a consensus, perpetually in flux; it’s frequently changed by statute and by judicial interpretation as and when society requires it. When that happens, change is inevitable; one could sooner stop the tide.
And we wouldn’t want to stop it; that’s the whole point. If in a century or two the world becomes so different that we no longer require courts to interfere in pregnancy, it would be a very bad thing to be bound to antique laws. For the foreseeable future, however, both medicine and the ideals of our society demand legal protection of the rights of both mother and unborn child, and Roe v. Wade (1973) defines that balance.
Unsurprisingly, there are two schools of thought on this judgment; oddly, they agree on the major premise: that the decision made in Roe v. Wade was based on very little in law, whether constitutional, the common law, or legal precedent. The premise supporting the ruling was that privacy is clearly guaranteed under the Fourth Amendment to the Constitution, that due to the Ninth and Fourteenth Amendments no state can infringe on this right, and that one’s medical choices are at the very core of privacy. However, while the second aspect is inarguably true, the first and third were debatable.
Because of this shallowness intrinsic in the initial decision, there was a brief time following Roe during which the court’s judgment could easily have been overturned or defeated by statute. The doctrine of stare decesis — the primacy of legal precedent — does not bind future courts when there is legal cause to reconsider. However, both before and since 1973 there have been a vast number of further judgments rendered on the right of privacy and still more on medicine, many of which likewise would be impacted were Roe to be unilaterally overturned. The sheer weight of consequences following forty-odd years of judicial practice make such an action more than slightly terrifying.
The further findings of Roe, specifically the first trimester and viability tests, were admitted by Justice Blackmun (the author of the Court’s decision) to be arbitrary in nature (specifically as opposed to Blackstone’s standard, at quickening). They were the primary weaknesses, and they have since been modified by other rulings. In the Casey (1992) decision, only the viability argument was determined to have overriding merit; at that time, the government’s interest lies equally in protecting the rights of the child. This part of Roe can therefore be considered superseded.
Of particular interest to the legal scholar is the decision rendered in Doe v. Bolton on the same day as Roe by the same court. While the same reasoning was used, the primacy of privacy as the operative premise specifically upheld that of a physician in determining treatment options rather than any preference on the part of a patient. Several of the more liberal critics of the decision (notably including Justice Ginsburg) hold that this is a weakness in the ruling, and that the Court ought to have concentrated on the patient’s right instead; however, it does constitute a further barrier to overturning.
It’s worth noting that there are several obstacles, and that each would need to be addressed separately. Another arguable opinion is that the provision of the Thirteenth Amendment against involuntary servitude should protect anyone from being compelled to carry a child to term; Ginsburg mentions the equal rights clause in the Fourteenth as further weight. Her belief is that Roe should have awaited the legislation which, at the time of the ruling, seemed inevitable; otherwise, challenges will continue perpetually.
And they do. Every year, state legislatures pass laws designed to restrict or contest Roe; other states attempt to broaden it. Court challenges are continual; dozens are considered by the high courts every year. The battles are endless, and yet very few ever end in anything but a draw. Finally nuanced lines get drawn and redrawn, and nonsensical laws get passed and thrown out in rapid succession, and that’s just how this fight goes.
Both major factions promise that, one day, one of these challenges will make it to the Supreme Court. It will be valid and well-argued, and Roe will be overturned. Pro-Choice proponents will ask you to help prevent that; Pro-Life champions want your support in their valiant fight. But either way, on the off chance that it gets struck down, in the immediate aftermath it will be almost instantly replaced; both pragmatism and a vast weight of public opinion will demand it.
But that chance is remote. Any move by the Court itself to make more than minor modifications to this established decision at this point would be impracticable. Overturning Roe completely would require a solidly-written bill to pass both House and Senate, to then be signed into law by the President, and further to stand up to the inevitable review by the Court — the last of these by far the most unlikely. Alternately, if the population felt strongly enough, the Amendment process could be employed. Given several decades of consistent popular support in favor of the ruling, the likelihood of either happening in the foreseeable future is faint indeed.
Science gives us no definitive answer.
For as long as there has been a medical profession, this has been one of the unanswered questions: At what precise point does life begin in the womb? For our purposes, we need to go one better: When does an embryo become a person? Science cannot reliably measure a soul; medicine cannot detect one. Only religion and philosophy assert its existence, but those answers are nebulous and have no weight in law.
Hippocrates didn’t have access to ultrasound, genetics, or the study of endocrinology, and it’s small wonder that he had no authoritative conclusion for us. But even today, though we can count infant heartbeats, monitor the stages of growth, and even detect brainwaves and reactions to stimuli long before birth, we cannot determine any definitive medical line which divides fetus from infant aside from the circumstance of birth — the which is of little use for us, as birth is largely a change in geography. (For this we have the authority of Justice Blackmun himself, in the Roe v. Wade ruling. -Ed.)
In early civilization, there is copious evidence to support that Greek and, later, Roman physicians routinely practiced abortion; during the Islamic Golden Age, pioneering surgeon al-Zahrawi is sometimes said to have been an expert. In most of the world’s cultures before the industrial age, even an infant was scarcely acknowledged to even be alive before its first birthday. (Due to high infant mortality rates in undeveloped countries, this is hardly surprising.) Only in the Jewish, Christian, and Islamic ethical traditions was infanticide considered uniformly reprehensible; the ancient Greeks and Romans, for example, routinely practiced infanticide by exposure to rid themselves of unwanted children.
It has only been in modern times that infanticide, and by extension abortion, has been widely viewed with disapprobation; in earlier days, children and even wives were often considered hardly above livestock from a legal perspective. As such, there was no occasion to establish any large body of philosophical tradition on the subject; medicine, being natural philosophy, depended on observation, and so has provided what tradition we have. The few measures recorded in the Common Law were that of the “formation of the fetus” (Bracton, “Laws and Customs”, 1569) and “quickening” (Blackstone, “Commentaries”, 1765).
Medical observation and definitions can give us certain benchmarks to aid us in our discussion, particularly the defined stages of pregnancy:
- Implantation, or Conception
- Embryogenesis (first trimester)
- Fetal development (including quickening – second trimester)
- Final development (third trimester)
Modern medicine tells us that effective conception — detectable life that’s separate from the mother, with a unique genetic code — begins once the embryo has implanted on the uterine wall. This takes place, usually, a week to ten days following initial fertilization (which itself has been observed to take place up to two weeks after sex). But is this fertilized egg deserving of legal protection? In religious terms: Does it have a soul when it’s still one single cell?
A fetal heartbeat can be heard at six weeks, but that’s almost irrelevant; heart tissue beats whether or not it’s part of a working pump, and a fetus doesn’t pump its own blood for a while yet. Basic brain activity is detectable after only a few weeks, but it’s reflex; the formation of the first synapse (real thought) doesn’t occur until about the seventeenth week — approximately the same time as fetal quickening, or detectable movement. Fetal viability at present can begin as early as the 21st week, but is generally considered to occur at around the 28th week, coincident with the end of the second trimester. (These numbers are based on statistics; individual cases vary widely.)
A vocal minority believe that life begins at the moment of ejaculation; medical knowledge contradicts this. Others choose either initial fertilization or implantation; conception is presently defined by most authorities as taking place at the beginning of the implantation process. The “ancient law” recorded by Bracton would place life’s legal beginning at the end of the first trimester; Blackstone would have us mark it at the moment of quickening (weeks 17-20). The present law uses fetal viability as the appropriate time, permitting physicians, state legislatures, and the degree of burden on the mother (including her safety) some discretion for deviations from the 24-28 week marks.
All of which is fascinating, but it doesn’t tell us when the potential child becomes a living creature deserving of legal protection approximately equivalent to the rights of the mother. Science can measure; it can define; it can even provide us a reasonable window from which to choose (in this case, from implantation to viability). But science cannot judge morality; that’s not what it’s for.
A lot of people will refuse to compromise.
Just as there are those who assert that life begins at ejaculation, there is a substantial percentage of the population which believes that abortion should be permissible, and a fetus have only limited rights, up to the moment of birth. As with the former, both medicine and legal precedent militate against this position so long as the fetus is viable, with or without aid, outside the body of the mother. (Editor’s Note – Clarification: A fetus is considered nonviable at any age if there are sufficient deformities or disorders to prevent life outside the womb.)
According to reliable polling data, nearly 60% of the voting population holds one or the other of these two views, both of which I personally (as well as a large number of doctors and legal scholars) consider invalid. If I’m right, this would mean a lot of people feel strongly about topics about which they know almost nothing. (Unsurprising. -Ed.) But I’m compelled to admit that it’s also possible I’m wrong.
However, I feel safe asserting that, if any amount of emotionally-loaded political argument on the topic could change hearts and minds, it would have done so over the course of the past four decades. Instead, polling data remains consistent over time, with just over half considering themselves Pro-Choice and just under half Pro-Life. Every year, hundreds of thousands march to demonstrate for one view or the other in D.C., and every year, nobody’s mind is changed.
This makes sense: Most Pro-Life people hold their views for religious reasons. Those who embrace the opposite view certainly don’t do so from an overriding sense of nihilism; their ideal may be personal freedom, gender equality, or humanism, but it remains idealism. And idealists, whether religious or humanist, are notoriously difficult to argue out of their convictions.
A note on the role of politicians
Abortion will draw attention, argument, votes, and intentionally provocative but meaningless bills at both the state and federal level for a long time to come. This is almost entirely because politicians are, primarily, cynical creatures who want your votes. If they actually sought reasonable solutions, this debate would have become moot decades ago — with pre-natal care and childbirth costs Federally insured, adoption procedures promoted and streamlined, and daycare-for-all subsidized.
Right now, Republicans are sputtering about Socialism and Democrats are feeling smug. I would urge Republicans to consider the cash value of a human life, which when all is said and done only begins at conception — and then continues for several decades. Democrats deserve their share of blame; for example, the party leadership habitually opposes adoption programs by attaching abortion riders. It’s a never-ending battle of inches, a tug-of-war between factions focused on headlines rather than victory.
Consider: A short time ago, Republicans held Congress, the Oval, and a majority in the Court; nothing was done. Not long before that, Democrats held all three, and nothing was done — and so on. The last major act on this issue that was passed into law was under Bush in 2003, and it was so badly written that it was struck down by the Court soon after. (It’s been said to have been designed to be struck down, as a political ploy.)
I won’t go so far as to say that all politicians are moral vacuums, but many are, and the party machines that sponsor them are surely soulless. If we desire change of any sort, we’ll need to make it happen the hard way: one charity, initiative, or program at a time. There’s no help coming; it’s up to us.
How To Fix Things
All parties to this debate who feel strongly about solutions rather than the endless fight share certain values. They’re idealists, each with a powerful commitment to human dignity, to freedom, and to the value of human life. They’ll disagree about the definition, but outside the narrow scope of that debate that difference is almost immaterial.
The most effective method for Pro-Lifers to reduce the number of abortions in the United States is to create programs that will support single mothers, and that will reduce the economic burden of childbirth. Government-subsidized daycare for all would be one tremendous stride forward, but if one believes in charity more than government, there exist several charitable organizations with the same goals. Additionally, charity begins at home; if evangelical Christians want to oppose abortion, they should consider adoption — possibly including underwriting the pregnancy and childbirth costs of the prospective mother. As the saying goes, Put your money where your mouth is.
It’s worth mentioning here that sex education prevents teen pregnancy, as does free access to birth control. Abstinence-only programs don’t work very well at all; it turns out that most teenagers will have sex whether or not they’re told it’s wrong. Free birth control has been shown to be extremely effective, and there are several forms that are acceptable to most organized faiths. Whether or not you approve morally, the numbers don’t lie.
If you’re Pro-Choice, you’ll still be in favor of several of these programs; the continued success of organizations like Planned Parenthood demonstrates this. Again, I’d mention government-subsidized daycare and other initiatives designed to ease the economic stress of childbirth; after all, it’s not a choice if you’re only allowed to say “no”. If the religious want to pitch in, let them and don’t condemn; if they want to do their own thing, that’s fine too.
The biggest thing all sides have in common is this: There is no politician presently running who will overturn Roe v. Wade. It is foolish to vote as if there were. Moreover, as there are so many serious issues facing us that actually can be addressed, it’s irresponsible to ignore them.
And either way your convictions lead you in the abortion debate, it’s vital to remember that the welfare of the mother and child (if a child is born) are of paramount importance. We all have that in common; we all must work together toward it or nothing will ever improve.
Politically, abortion is and ought to be a non-issue. Stop wasting your time, energy, and money.
One Final Note
After long thought and a great deal of study and discussion on this, I’ve arrived at a personal conviction: that the Roe v. Wade judgment ought to be removed and replaced.
So much time and energy is expended on this already answered question that it interferes with our entire political process. Once the subject is raised, reason leaves the room and dogma replaces it. Our system was designed to assemble the wisest and most brilliant among us and put them in one room, so that between them we could discuss, perhaps compromise, and eventually reach the best possible solutions for each of our major problems. As long as we focus on the unsolvable, we will remain without any foundation for the enlightened discourse our nation requires.
If it is possible, we should create that form of law which cannot easily be overturned: a Constitutional amendment that clearly defines the rights of the unborn relative to its mother. To be durable, it must also be flexible, incorporating a provision for a college of physicians and another of eminent jurists to answer questions on viability and life, especially as medical science develops. Likewise, it must be binding on both state and Federal level.
This would be difficult to achieve, but the impact on our political system going forward would be tremendous — and positive.