A Thoughtful Consideration of the Topic of Abortion
In 2018, one of the most restrictive laws concerning abortion was born in the heart of Mississippi. That law would outlaw abortions after 15 weeks of pregnancy, placing Mississippi directly in opposition to the established law of the land — Row vs. Wade. Row vs. Wade states explicitly that until the second trimester, the decision whether or not to abort a fetus is completely at the discretion of a pregnant woman (12 weeks). During the second trimester, a state may regulate, but not deny, abortion services. 15 weeks is only 3 weeks into the second trimester, so abortions can’t be denied but can be regulated according to current law.
The recent case before the supreme court is re-examining the decision. In scope is the question posed by the state of Mississippi of whether or not Roe v. Wade was decided correctly, or whether it should be overturned.
Supporting Perspective (to Overturn)
Roe v. Wade talks a lot about viability, or when the fetus could survive outside of the mother’s body. A fetus is generally considered viable after 24 weeks (about 2 weeks before the third trimester). Roe v. Wade graduates the decision from the individual to the state as mentioned earlier whereas the Mississippi law puts a hard stop at 15 weeks.
One argument before the court which requests overturning Roe v. Wade is that the concept of fetal viability is not referred to in the constitution nor tradition before Roe v. Wade, and is a concept wholly introduced new by the judges of the time. In fact, there is no constitutional right to abortion, suggests the argument. This argument goes farther than the Mississippi law, which says that because of medical advances, viability is more assured sooner during pregnancy, and therefore the standard of viability needs to change. Hence, Mississippi is arguing two different things.
Aside from Mississippi or the trial, there are other opinions that support overturning Roe v. Wade. For example, safe haven laws exist in multiple states that allow prospective mothers to drop their children off at pre-designated places with varying degrees of anonymity and clemency from prosecution (for child abandonment or neglect). Some have argued that such laws render abortion no longer necessary.
Contrary Perspective (to Uphold)
Though decided with viability in mind, Roe v. Wade sets specific limits to what rights should belong to the state and what rights should belong to the individual. During the first trimester, the woman has the rights according to Roe v. Wade, and changing that would go against fifty years of precedence. Further, overturning a decision with more than 50 years of precedence would make the court seem to carry a political motive, or at the very least, sway with public opinion. This would undermine public trust in the institution of the Supreme court, which would be crippling to our nation.
Other Considerations
The argument about not reversing precedent is a good point. The Dred Scott is one example of reversing precedent, so it does happen. But Dred Scott was only overturned after the fourteenth amendment declared freed blacks to be citizens. So the constitution effectively changed, allowing the prior ruling to be overturned. Also, the argument on a right to abortion and viability not being in the constitution is weak as it is the job of the supreme court to interpret the constitution, and so if the supreme court decides that viability was important in making a decision balancing the rights of two life forces against one another, then that’s the court’s decision to make.
It’s important to know that the majority of Americans would prefer to keep Roe v. Wade. This means that the argument about waffling with public opinion isn’t as strong as it seems, as public opinion is currently to uphold Roe v. Wade as opposed to strike it down. However, Pew Research did a poll specifically in Mississippi, and the majority (64%) of those polled preferred that abortion be illegal in most cases, 5% making no carve-out for rape or incest.
For some additional context, the population of Mississippi is about 2.796 million. For perspective, the population of Houston, TX is 2.31 million as of this blog entry.
Finally, it’s important to know that Abortion was perfectly legal, prior to feeling the infant’s body move, in early America. That would be around 18 weeks, well into the second trimester.
Right and Freedom Perspective
When framed as a state’s rights issue, this question becomes somewhat muddy because clearly the overwhelming majority of people in Mississippi really do want to drastically limit access to abortion. But here at Right and Freedom, that’s not the end of the reasoning. We’re trying to get to the right and freedom of it, and this particular problem can be framed in a way that makes it easier to see what those are.
The Issues
There are two separate issues here which have been unfortunately woven into a single issue. One is that a pregnant individual’s body is their own and therefore shouldn’t be interfered with without explicit permission. Another is that a fetus that can survive external to a pregnant individual’s body is a human life and should not be unceremoniously murdered.
These don’t have to be rolled up into one conceptual problem. Even with today’s technology (and despite belief in some circles), the age of viability is pretty far along at 24 weeks, which is very late into the second trimester. Considering a fetus before that point to be anything other than an extension of the mother’s body seems unreasonable, in which case protecting a fetus of this age as a fully-fledged human under the law seems equally unreasonable.
The right thing to do would be to protect an individual’s freedom to make decisions about their own body. Anything short of allowing the pregnant individual to make the decision with complete autonomy is restricting rights with a dubious motive as it doesn’t protect the freedoms of the individual, rather preferring the to imbue rights to a non-viable equivalent of a bodily organ.
After the 24 week mark, if the state or federal government decides that the child should survive, then they need also to be prepared to remove the child from the pregnant individual, accept the cost for that, as well as absolve the individual of all responsibility to the child and provide strict anonymity so that the child cannot contact the individual without explicit permission.
That uncovers another problem that can’t be resolved yet — how to extract a viable child from an individual in a way that doesn’t also invade that person’s body. This is the ultimate barrier that forces people to choose between one individual (the pregnant person) and another (the viable fetus).
The Other Problem
There’s another concern. All of the above only applies if the state or federal governments consider a child that can be viable with medical intervention included in the definition of viability. If the state and federal governments consider viability to be without medical intervention (perhaps with an exception of cesarian sections for delivery) then we get much closer to full-term (40 weeks). 39 weeks is the “magic number” at which children are more or less safe from long-term disabilities or impacts.
From that perspective, a fetus may be considered an extension of the pregnant individual’s body, similar to an organ, until 39 weeks. In this context, the pregnant individual should be able to excise (deliberately clinical here due to the perspective shift) the fetus at any point that the individual would desire to. Of course, there are limits here. Considering the heart, finding a doctor who will cut a heart from a living person without sound reason is (thankfully) unlikely. Apprehension among doctors helps limit the rate of late-term abortions (not necessarily because of the law but more because of the state of the fetus).
In the United States, only about 1.3% of all abortions are after 21 weeks. And for those that do occur late, there are usually health concerns for either the mother or the infant — but not always. One reason for what some call late-term abortions is that women face obstacles obtaining abortions earlier in the pregnancy.
The more difficult it is for individuals to access abortions, the later in the term individuals get abortions. But the abortions don’t stop.
In other words, if the goal of the abortion legislation is fewer late-term abortions, then the solution is more access to abortion services, earlier, rather than less. In a sense, the law being enacted will very possibly cause the opposite effect than desired.
The low 1.3% number highlights something else about the decision to try to change a law: there isn’t a problem here to solve. Women generally make good choices about when to abort their pregnancies based on their living conditions and the conditions in which children will grow and prosper — or not.
Conclusion
So overturning Roe v. Wade is the exact wrong thing to attempt. It limits the freedom of individuals to make choices concerning their bodies. Mississippi already has only a single abortion clinic, and closing the window during which an abortion can be obtained will potentially increase the number of late-term abortions as more women must be crammed into a smaller abortion window. Finally, the law attempts to solve a problem that really doesn’t necessarily exist, as women make generally good choices about whether or not to continue their pregnancies.
In fact, one could argue, as we have done, that Roe v. Wade doesn’t go far enough to guarantee the freedom of the individual, and despite the intent behind it, treats a pregnant individual as a tool as opposed to a person. If anything, Roe v. Wade should be shored up and reinforced to fix that problem.
References:
Legal Information Institute. (n.d.). Roe v. Wade (1973). Legal Information Institute. Retrieved December 2, 2021, from https://www.law.cornell.edu/wex/roe_v_wade_(1973).
NBCUniversal News Group. (2021, December 2). Supreme Court signals willingness to uphold abortion limits in Mississippi case. NBCNews.com. Retrieved December 2, 2021, from https://www.nbcnews.com/politics/supreme-court/supreme-court-set-dive-mississippi-abortion-case-challenging-roe-v-n1285114.
NBCUniversal News Group. (2021, November 29). Supreme Court to take up Mississippi Challenge to Roe v. Wade. NBCNews.com. Retrieved December 2, 2021, from https://www.nbcnews.com/politics/supreme-court/supreme-court-take-mississippi-challenge-roe-v-wade-n1284919.
Sneed, T., & Macaya, M. (2021, December 2). December 1, 2021 Roe v. Wade goes before the Supreme Court. CNN. Retrieved December 2, 2021, from https://www.cnn.com/politics/live-news/supreme-court-roe-v-wade-abortion-case-12-01-21/index.html.
Infant safe haven laws - child welfare. (n.d.). Retrieved December 2, 2021, from https://www.childwelfare.gov/pubPDFs/safehaven.pdf.
Miscarriage. Home. (n.d.). Retrieved December 2, 2021, from https://www.marchofdimes.org/complications/miscarriage.aspx.
Department of Health. Why Is 40 Weeks so Important? (n.d.). Retrieved December 2, 2021, from https://www.health.ny.gov/community/pregnancy/why_is_40_weeks_so_important.htm.
Guardian News and Media. (2019, March 8). The truth about late-term abortions in the US: They're very rare. The Guardian. Retrieved December 2, 2021, from https://www.theguardian.com/news/datablog/2019/mar/07/abortion-late-term-what-pregnancy-stage.
