Posted on 12/01/2021 5:12:32 AM PST by Kaslin
For nearly half a century, the Supreme Court has said the Constitution prohibits states from banning abortion before "viability," the point at which a fetus can survive outside the womb. This week, Mississippi, defending its ban on abortions after 15 weeks of gestation, urged the justices to abandon that long-standing rule, which it says never made much sense and cannot be constitutionally justified.
Mississippi has a point: The viability rule does not satisfactorily resolve the competing moral claims at the heart of the abortion debate. But the same could be said of the alternatives, including whatever policies state legislators would choose should the Court decide that the Constitution does not protect a right to abortion after all.
Depending on your perspective, the Court either recognized or invented that right in 1973, when it overturned a Texas law that prohibited abortion except when it was deemed necessary to save the mother's life. Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade, was initially inclined to draw a line at the end of the first trimester (about 13 weeks) but ultimately settled on "viability," which he said "is usually placed at about seven months (28 weeks)."
In the 1992 case Planned Parenthood v. Casey, the Court reaffirmed Roe's "central holding" that "viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions." It said that judgment "in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future."
But the technologically contingent definition of viability is not the only reason to question the soundness of this distinction. Roe posited that the ability to breathe, with or without artificial assistance, marks the point at which "the State's important and legitimate interest in potential life" becomes "compelling."
According to Roe, "this is so because the fetus then presumably has the capability of meaningful life outside the mother's womb." According to Casey, viability is when "there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman."
This rationale, Mississippi argues, "boils down to a circular assertion: when an unborn child can live outside the womb then the State's interest is compelling because the unborn child can live outside the womb." And if "independent existence" is the crucial consideration, that logic could be extended in ways few would consider morally acceptable, since infants rely on the care of others long after birth, while disabled people may need such assistance indefinitely.
From a pro-choice perspective, the viability rule has the advantage of allowing nearly all abortions, less than 1% of which are performed at 21 weeks or later. But Mississippi's 15-week limit, which would prohibit about 5% of abortions in that state, is not much different on that score.
Why 15 weeks? The state legislature's choice of that limit seems no less arbitrary than the viability rule, especially since its findings suggested several other possibilities, including five to six weeks (when "an unborn human being's heart begins beating"), eight weeks (when a fetus "begins to move about in the womb"), nine weeks (when "all basic physiological functions are present.") and 10 weeks (when "vital organs begin to function").
There are many answers to the question of at what point on the continuum from conception to birth another person's right to life supersedes a woman's right to bodily autonomy, and none is completely satisfying. That will remain true no matter where the Court comes down on the government's authority to make that call.
It was never the supreme courts business to begin with.
Seems to me that's a false premise when birth control is so easily and cheaply available. Heck, various services even provide it for free. These days no woman in developed countries needs to be pregnant if she does not want to be, unless she wants all the welfare goodies available to single mothers with children.
What isn’t arbitrary:
The human zygote is alive.
The human zygote is recognizably human.
The human zygote is a unique genetic individual.
When the zygote is formed by the union of the ovum and sperm, you have a living human and it is illegal is the US to kill a living human. The Supreme Court should correct it’s earlier mistake, it should drop discussion of viability, and trimesters, and all such rot and the Court should declare that abortion is wrong.
Simple, overrule roe v wade and turn the matter back to the states where it belongs. Let the states decide. Some will allow abortions some will not but it would end the years of court cases ending up in the Supreme Court where they just keep confusing the issue. They should admit they were wrong and correct it.
This is a tenth amendment issue and always should have been. The state’s decide what homicide is via their respective penal codes it should be no different to decide and if homicide the legal definition of a human taking another humans life is be it in vitro or not. The blue state’s will have different laws from the red and that’s how the constitution intended it to be. Vote with your feet if you don’t like what your sovereign state is doing. The founders never intended for the Fed’s to be the all ruling government they took great means to do exactly opposite of that. Which since 1865 have been ignored by the Fed’s.
“It was never the supreme courts business to begin with.”
That’s where the line should be drawn.
My first grandson was a 26-weeker, and I hadn't done preemie work in 40 years, so it gave me a chance to catch up on advances in the field of treatment and on intrauterine biology.
(He's nine years old and fine, thanks).
Between 22 and 26 weeks there's a remarkable set of developments that make (assisted) survival possible. Prior to 22 weeks, salvage attempts create ghastly outcomes more often than not, and undamaged survival prior to 22 weeks is so rare as to not be a serious consideration.
The reason 26 weekers can survive undamaged, whereas in 1975 that was not possible, is better machines and better understanding of infant lung physiology.
The reason 20 weekers can't survive is because they can't utilize inspired oxygen to run their metabolic processes.
There is unquestionably a biologic barrier to extremely premature survival, and the fact that we have gone from 30 weeks to 24 weeks over my career does not mean that going from 24 to 16 is "just a matter of time and money".
Indeed. That's the correct principle.
But reality is detached from principle, and not only SCOTUS but all of the federal government is allowed to run roughshod over the constitution, over personal liberty, over states rights, and right now is on a track that puts the US people under the thumb of a one-world "interdependence" scheme with less freedom than we have now.
Failed institutions in my eyes.
If the baby killers want to protect their right to murder innocent babies they simply need to elect a congress and a president that will make it federal law, not use the Supreme Court to do it for them.
Career protection suggests that SCOTUS is the right instutution for passing edicts that a majority of the public will reject.
The constitutional right to homo marriage is another matter on this path.
My point is that there is a vast gulf between what is allowed in principle, and what is allowed in fact. The baby killers are just as likely to keep their allies in the federal courts, as they are to lose them.
If you can spot it, you can keep it alive.
Madame, why does “your body” have the DNA of another person?
later
Yep. There is nothing in the constitution regarding abortion or health care. Anything not specifically stated in the 18 enumerated powers of Congress reverts to the states, counties, or cities.
“the capability of meaningful life”
from my home page
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I’ve posted this in a couple of places and it doesn’t seem to get much more than a yawn, even though it’s kinda-sorta an incremental approach.
http://www.freerepublic.com/focus/f-news/1908148/posts?page=125#125
I believe a fetus is a human being who deserves protection under the law from being killed.
***I do too. That fetus deserves protection extended by the state.
I do wonder if it is biblical to extend ‘full protection to a fetus? I.e. when a man hurts a pregnant woman, he’s expected to pay an eye for an eye & a tooth for a tooth. But if the unborn baby is killed, the price is not the same.
Perhaps it is time to consider a 3 (or even 4) tiered system of protection.
Tier 1: Living, viable, late term baby which will not be aborted unless the life of the mother is at stake.
Tier 2: Living, not-yet-viable pre-born human who should have the right to protection and life and a safe womb to which it can attain viability. Cannot be aborted unless there is an open rape case associated with the pregnancy or the life of the mother is at stake.
Tier 3: Living, early stage, not yet viable pre-born human for whom we do not extend the rights of life in this society because of a historical snag where we once considered such tissue not to be a baby. We as a society thought it was best to consider it a private decision. I personally do not believe in Tier3 abortions, but I can understand that there are many who think it is a ‘right to choose at this stage. It may be time to consider a program where the woman declares her pregnancy and intent to abort. Our societal function at this point would be to provide a family that is willing to adopt this baby and to put up this woman for 6-8 months in a safe environment so the baby can grow and maybe the woman can learn some life skills. If our society cannot muster the forces necessary to save this baby, the woman has the sickening ‘right to abort this pregnancy. Time for us to put up or shut up.
With a 3-tiered plan in place, women would stop using abortion as a means of birth control. Millions of lives would be saved. We would extend the right to life to every human that we have resources to save. Unfortunately, if we cannot put up the resources to save the Tier3 babies, we still would have this horrible practice staining our nation’s soul.
125 posted on 10/08/2007 1:43:20 PM PDT by Kevmo (We should withdraw from Iraq — via Tehran. And Duncan Hunter is just the man to get that job done.)
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The fact that it IS arbitrary is exactly why NO COURT should support it. LEGISLATURES deal with the tradeoffs involved in arbitrary decisions all the time and we can, if we as a people disagree with where they draw the line, elect new people to draw a new line.
It is a state issue. Just as what is first or second degree murder and what circumstances allow self-defense.
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