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The Supreme Court and abortion

2021-12-04

Justice Sotomayor made an unusual statement during oral arguments over Dobbs v. Jackson Women’s Health Organization. She wondered whether the reputation of the Supreme Court would survive the decision in that case:  “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

She went on to demand of Mississippi’s Solicitor General, who was arguing in defense of the state’s ban on abortion after 15 weeks of pregnancy:  “How is your interest anything but a religious view?” (I take these quotes from the Washington Post but most any national news organization will do.)

She was referring to the other justices’ eagerness to reverse the precedent set in 1973 by the case known as Roe v. Wade. This eagerness was on display during the oral arguments, especially by Justice Kavanaugh. It was facilitated by the Republicans’ intense efforts since 1973 to pack the Court with justices who would be biased against abortion to the extent that they would be willing to reverse precedent. Such bias goes against public opinion, which has favored the current standard consistently and by large margins without significant changes over the years.

The right to abort one’s own fetus has been affirmed by the Supreme Court since 1973, when it ruled in Roe v. Wade that abortion could not be prohibited up until the time of “viability” (24 weeks.) “Viability” is defined as the ability of the fetus to breathe after delivery from the mother’s womb. “Viability”, however, is somewhat arbitrary, since it does not indicate that ability to breathe on one’s own is sufficient for survival in a relatively intact state.

While children have survived birth as early as 20-21 weeks gestation in extreme cases, their condition is one that is usually severely disabled, with blindness and impaired lung function the rule. Other disabilities are common and too numerous to mention in a short blog post. The point is that “viability” is an arbitrary and elastic cut-off. Many people on both sides of the abortion debate have noted the inadequacy of “viability” as a criterion.

The use of “viability” was a compromise within the internal debate of the members of the Supreme Court. In this post, we will use a more fundamental distinction. The fetus is a human being from the time it appears as a single-celled organism; she or he requires a sophisticated gestational framework in order to progress from a single cell to a complete infant over a period of some nine months.

Despite the fundamental human-ness of an embryo, it is not inviolate by any means. The interests of the mother are critical to a reasonable discussion of the legality of abortion.

To show this, an oversimplified example will help to clarify the critical issues. Let us suppose that you woke up one morning with a set of tubes running from your arm through the wall through which your blood is siphoned off to sustain the life of another human being on the other side of the wall, and returned to you in a slightly used condition. You are informed that this arrangement is necessary to save the life of that other human being, and that further, no other person can step in and have themselves hooked up instead of you.

Are you ethically, morally, or legally obligated to leave those tubes in place for several months with the knowledge that removal of them would cause the other human (whom you cannot see or communicate with) to die?

Legally, you are not required to make a sacrifice of this type. By the same token, you are not required to give another person one of your kidneys, or a piece of your liver, or a half of one of your lungs in order to save their life. All of those donations represent a smaller sacrifice than nine months of your life, yet none of them are legally required of you.

Morally and ethically, there may exist some degree of obligation to sacrifice for other people; however, the strength of that obligation is probably attenuated by your degree of kinship with the other person. Most would agree that morally, you should (but are not required to) give one of your kidneys to your parent or your offspring– but a complete stranger has less call upon you.

Regardless of moral considerations, you cannot be legally forced to give up a portion of your body to save the life of another person. Why, then, should you be forced to give up nine months of time, significant portions of your body’s calcium and iron, and to undergo the pain and suffering of delivery? We will leave aside twenty-one years of raising a child, with the financial and emotional costs attendant on that; those things are “irrelevant” because, as Justice Amy Coney Barrett has pointed out, you can leave the baby at the nearest emergency room and walk away under the laws of all fifty states.

I reiterate that the person whose life is being saved by your sacrifice is a full human being, regardless of how many cells they have or whether they can walk, talk, or even simply breathe.

To argue that a woman is legally required to make this sacrifice and provide room for nine months within her own body for another human being just because her attempts at contraception have failed, or even because she has been raped, is morally and ethically deficient.

Furthermore, the desire to have an abortion may be dictated by medical necessity rather than personal choice at almost any time during gestation. For example, amniocentesis to determine the chromosomal makeup of a fetus is not safely performed until about 15 weeks gestation. Thus, many lethal defects in one’s genetic endowment cannot be discovered until after the Mississippi law has taken effect. Another problem that can surface which will endanger the life of the mother as well as the child is pre-eclampsia, which may not occur until eighteen weeks or later.

In some rare cases, lethal problems can arise after 24 weeks’ gestation, requiring abortion to be performed to save the life of the mother. Some conditions can rarely present which will cause the baby to die at birth or shortly thereafter– and which will not be apparent until 28 weeks or later. Very rarely, the baby may suddenly die in the womb without warning, at full term. In these unusual cases, it is essential for an expert obstetrician to make the appropriate diagnosis and fully inform the mother of the risks involved. Interference from the legal system of district attorneys, grand juries, and judges in these cases is worse than useless.

Some religions hold that the life of the baby in the womb is more important than the life or well-being of the mother. To use such an argument to create a legal prohibition of abortion would be to favor the establishment of a particular religion, which is prohibited by the first amendment to the Constitution.

Therefore, even when we acknowledge that the fetus is a full-fledged human being with the potential to grow up and become a contributing member of society, absolute legal prohibition of abortion at any stage of gestation is not morally, ethically, or Constitutionally warranted.

John Paul Stevens at 99 years of age

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