October 28, 2005

A ‘viable’ argument for stricter abortion laws?

With all the talk of Supreme Court nominees and the effect they might have on any challenges to the landmark Roe v. Wade case that legalized abortion on demand (as well as severely limiting State laws in regards to the procedure.) I figured I should brush up on the case, and what ground if any (from a legal stand point) there would be for challenging the ruling.

Upon examination, I found perhaps a good (incremental) step would be to pass stricter abortion laws, and then let them face legal scrutiny. With advances in medicine, the question of a State’s roll in abortion cases may need to change with the times. However, lets start at the beginning.

As you may or may not know the decision in the case was decided “by a ruling recognizing a right of personal privacy protected by the due process clause that included a qualified right of a woman to determine whether or not to bear a child.”

In case you slept through your government class in high school, the ‘due process clause’ is taken from the first section of the 14th amendment to the Constitution.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”
Now, in Roe the Court ruled that laws prohibiting or curtailing abortion abridged this right to due process, and referred to an apparent “right to privacy” that exists (however unsaid) in the above statement, such a right would be violated by restrictive abortion laws.

Of course, you may have noticed that the amendment said no “person” shall be denied these rights (including the right to life.) How then can this unborn person be killed? Simply put, the court ruled an unborn baby, is not in fact, a person.

This wasn’t the first time the Court found a person to not be a person however, the same thing happened in the Dred Scott case were the Court found that Scott (a black, former slave) was not a “person” or Citizen as laid out in the Constitution and therefore didn’t have Constitutional rights. That decision was later overturned. The court found in Roe that:
“…a review of the concept of ''person'' as protected in the due process clause and in other provisions of the Constitution established to the Court's satisfaction that the word ''person'' did not include the unborn, and therefore that the unborn lacked federal constitutional protection.”
This comes from the whole school of thought that there is some magical point where an embryo, or more likely a fetus suddenly “becomes” human. That point is somehow shrouded in mystery and for the most part is left up to the discretion of the mother.

Now, if the mother was to have the baby and threw the newborn into a dumpster (as recently happened in LA) the public is outraged. Our intrinsic moral reaction to value life suddenly appears! Now, before the baby travels through the birth canal, well until then it’s just speculative, it’s only a ‘potential’ life.

This confusing morally logic gave the Court problems too, apparently the Court wasn’t exactly sure if the unborn should receive any rights or not and found confusingly that:
“[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.”
This idea they further “clarified” as a three-stage balancing of rights and interests extending over the full nine-month term of pregnancy.
“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.”
The first trimester ends at 12 weeks.
“(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”
The second trimester proceeds from 12 to 28 weeks.
“(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
The third trimester extends from 28 to 40 weeks.

This is the part that really interested me, apparently as the baby goes through each trimester the State has a more compelling interest to protect it, cumulating in ‘viability’ where the State has the most compelling amount of interest, and therefore the maximum amount of protectional power.

According to Webster’s “viability” is defined as:
“Capable of living, developing, or germinating under favorable conditions.”
However, one might argue that no newborn (much less a 2 year old) fits that definition, so it is further defined as:
“Capable of living outside the uterus. Used of a fetus or newborn.”
At the time of the ruling, one might easily assume ‘viability’ for the fetus would be the third trimester; however this is no longer the case. In fact, it is common for babies born in the second trimester to survive, as early as 21 or 22 weeks. Now those babies do have increased risks of complications, but the treatment is literally getting better every year.

If this is the case, apparently if strictly interrupted the States have the rights laid out in part (c) starting at about 21 weeks, not just 28 weeks an up. That’s a whole two months sooner. As technology improves, the span before a viability period will no doubt decrease.

Further, a lot of research has gone into ‘artificial wombs’ which is bound to confuse the situation even more. Think about it, what is real difference between life support systems that sustain a person for a few months of recovery and an artificial womb that sustains a baby for a few months?

Also, at the time of the ruling we didn’t have the sonogram, ultrasound, and imaging technology we have now, you can actually see the unborn baby, with all its features.

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