The highest court in the land has convened in what may become a rather legendary term. They will rule on some very important cases. Not the least of which is the Mississippi case, Dobbs v. Jackson Women's Health Organization. This case could result in the gutting or overturning of Roe v. Wade, the 1973 decision that gave women in the United States the right to abortions as legal medical procedures, conditioned on the trimester in which the procedure was sought.
The nation is markedly divided on the issue of abortion. Perhaps the only thing both sides might agree on is that constitutional rights are at stake, and who has which rights. So called right-to-lifers argue that the fetus has rights, one of which is the right to life regardless of (or at least despite) any other considerations. The other side, those self-identified as pro-choice, argue that a person’s body autonomy is guaranteed by law, and this makes paramount a woman’s right to choose an abortion, if she wishes. The key here is the law. Ever since Roe, right-to-lifers prefer to emphasize moral issues over legal ones. But this is where the current Supreme Court steps in. SCOTUS is obviously centered on interpreting legal issues rather than moral ones. Since 1973, the legal issue this controversy presents has been one decided in terms of law. What this upcoming decision might mean is a marked change in what the law says concerning rights and who has them.
Political shenanigans by then-majority leader Senator Mitch McConnell precluded a SCOTUS appointment by Democratic President Barrack Obama. Then, under a Republican administration, the same Chief Shenanigan rushed through three court appointments, making the balance of the court now heavily in favor of so-called conservatives. And even though polls show that the public is heavily opposed to changing Roe v. Wade, conservatives in Congress have fought to limit or overturn Roe for years.
It must be established that there are valid points of argument on both sides of the abortion issue. A fetus is, after all, deserving of consideration. It is completely defenseless and entirely reliant upon its mother for everything, including warmth, food, and protection.
One point right-to-lifers unfortunately like to argue is that the fetus is alive. Its life should be protected, they argue, as a moral imperative, because “a human life” is at stake. This is where the issue gets a lot more clouded. This is so because our laws are set up to protect human life, and when the fetus qualifies as a human life is therefore at issue. But unfortunately for right-to-lifers, human personhood has been legally defined as the moment of birth. Right-to-lifers like to cloud the issue further by using gotcha words and phrases like “murder” for abortion, “baby” for fetus, and “heart beat” for personhood. As the law stands now, birth defines personhood. But the issue of life, itself, is no less problematic for right-to-lifers. They somewhat desperately want to claim that because it is alive, the fetus has rights.
While women’s rights advocates focus on the woman’s body, the right-to-lifer defends the “baby’s” rights. Both stances miss a key point. We are talking about gestation which is a process spread out over time, during which the fetus physically develops. Yes, the fetus is fully deserving of consideration. But so is the woman, who presumably remains in control of her own body. Granted, it is not just the woman’s body that is at stake. There definitely is another life involved. However, that life is a fetus, not a “baby.” And going back further, that life was a zygote. And at one point, it was just a single-cell fertilized egg. And how about before that? Yes, life did not begin at conception. Life was passed down to the fertilized egg from the combination of an unfertilized egg and a sperm cell. In a nod to ancient Tibetan wisdom, life as we know it does not somehow spontaneously appear. Life comes from life. Therefore, our first conclusion must be that a life and personhood cannot be the same thing. Yes, the zygote is alive and deserving of consideration on those grounds. But the zygote is not a person. Hence, instead of focusing merely on life, the concept of viability comes into play. At what point does a fetus become viable for survival on its own, outside the womb?
Since sanitation, cultural, and medical conditions vary so greatly around the world, there is no generally accepted worldwide gestational age for human fetal viability. According to several studies*, fetal survival after early births declined rapidly the earlier they were. At 26-27 weeks of gestation, over 90 percent survived, but at 24 weeks, only 20 to 35 percent survived. And these survival rates are achieved with the benefit of twenty-first century medical care. Twenty-seven weeks falls right at the end of the second trimester, after six months of pregnancy. And only two weeks earlier, the survival rate drops precipitously. Roe based its decision on the relevance of which trimester was at issue. No governmental intervention was legal in a woman’s decision to abort a fetus in the first trimester. Only some intervention was legal in the second trimester. And legal intervention was acceptable in the third trimester as long as there were some exceptions in certain health related cases.
A highly controversial Texas law that went into effect recently, instituted an extremely early ban on abortions performed when “a heartbeat” can first be detected. That event occurs as early as six weeks of gestation, not even half way through the first trimester. These so-called heartbeat laws focus on an admittedly meaningful organ, but it is actually only a muscular pump. Persons are no more defined by the heart and its beating, than we are by our liver’s secretion of bile. When the heart starts pumping blood, there is no brain function, and most organs are as yet non-existent. At this point the life in question is far less than one inch long. And at six weeks it isn’t even termed a fetus yet, being still referred to as an embryo.
The liver, by the way, is so much more complex an organ than the heart, that there is little comparison. What the heart does is quite rudimentary, and it has just that one primary function. The liver has many key functions and is so complex that its organic development is not complete until the eighth or ninth month of gestation. The heart is far too simple an organ to be thought of as a defining marker for personhood. Those who rely on this flimsy marker are simply desperate for an indicator of personhood, so that “rights” can be assigned, in this case, to an embryo.
So when are we actually talking about a human life? It is a philosophical question, not easily answered. And this is why it is far easier to decide the issue in terms of legality rather than moral, religious, or other ethical considerations. Before you can assign legal rights of personhood, you must have a definable person. Was the initial single-cell fertilized egg a “human being?” Or was it merely a potential human being? Going down the path that ascribes human rights to single-cell organisms could result in the assignment of rights to all of the female’s unfertilized eggs and all of the male’s sperm cells.
Being alive does not define your personhood. Legally, your birth did that. And even your death will not end your personhood rights, as seen in the organ transplant example cited below. Life is far from being the key factor in personhood. However, there is certainly no disputing the personhood of the mother. She definitely has the rights that come with it. And in the United States, her rights as a person are constitutionally guaranteed. The Due Process Clause of the 14th Amendment establishes a “right to privacy,” which then involves further rights. Among those most valuable, is the right to body autonomy. Your body is yours, alone, and no government entity or other actor can segregate or “claim” any part of it, for any reason, unless you willingly permit this to occur. This is one of the reasons you have to sign a statement before many surgeries. It is why no one can utilize any of your organs for transplant after you die, unless you have fore-ordained this. Legally, it is a personal choice that matters. Pertaining to rights, regardless of whether you “believe” a fetus is equivalent to a human adult, legally a woman is not obligated to sacrifice her bodily autonomy for anyone, even her fetus, and especially her embryo. As it stands, except in Texas (for now), a woman has the unqualified right to decide whether abortion is right for her in her first trimester of pregnancy. This is what pro-choice means. Holding a pro-choice opinion does not mean you like abortions. The decision to abort is frequently highly traumatic. No one is a fan of abortion, per se.
The only way around this legal pro-choice interpretation would be to change the law. SCOTUS could do this by voiding some interpretations inherent in the Roe decision. But there is a great deal of historical precedent to overcome if they wanted to do this. [Griswold v. Connecticut, 1965; McFall v. Shimp, 1978] The problem is, they might want to do this regardless of how much precedent has guided legal decisions before and since Roe was enacted. The three SCOTUS appointments of Donald Trump were preselected based on a screening for willingness to overturn Roe. Again, the majority of Americans are against changes to Roe. But it is unknown just how radicalized the Court has become with these appointments. We might soon find out the answer to that question.
* The American College of Obstetricians and Gynecologists (September 2002). "ACOG Practice Bulletin: Clinical Management Guidelines for Obstetrician-Gynecologists: Number 38, September 2002. Perinatal care at the threshold of viability". Obstetrics and Gynecology. 100 (3): 617–24.
Luke B, Brown MB (December 2006). "The changing risk of infant mortality by gestation, plurality, and race: 1989-1991 versus 1999-2001". Pediatrics. 118 (6): 2488–97.
Tyson JE, Parikh NA, Langer J, Green C, Higgins RD (April 2008). "Intensive care for extreme prematurity--moving beyond gestational age". The New England Journal of Medicine. 358 (16): 1672–81.