As I stated in my last blog (Abortion: Pro-Life/Pro-ChoiceBoth Right?), many people on both sides of the abortion debate would like to see the Supreme Court revisit their 1973 Roe v. Wade decision which legalized abortion in many states. Some hope that the court would ban abortions altogether and others hope that the court would clarify and broaden Roe v. Wade so that all abortion is legalized. At the same time, others would prefer that this not happen because, as is often the case, once the court opens the case for arguments, anything can happen. Based on what I have read, I think that the truth lies somewhere in the middle. I think that if the Supreme Court is ever willing to reconsider Roe v. Wade, both sides will be unhappy with the outcome.
In the 1973 Roe v. Wade decision, the court affirmed that a woman had a constitutionally protected right to privacy until the second or third trimester[i]. The court later abandoned the trimester “framework” but affirmed that a woman had a right to abortion until the infant was viable. Wikipedia says that “The Roe decision defined "viable" as being "potentially able to live outside the mother's womb, albeit with artificial aid", adding that viability "is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."[ii]
For the court, the argument was never whether or not a woman had a right to abortion, but about how to discern when one right can be superior to another when two constitutionally protected rights, life and privacy, are in conflict. For the court, there was never really a question of whether or not there was a right to life or a right to privacy. The question was how to choose which holds a superior claim and when. For the court in 1973, viability was the measure that worked. When the baby was developed enough that it could survive, even with “artificial aid,” then the right to life held the superior claim.
Neither “side” could declare a clear victory in 1973. Abortions could be performed but could still be restricted and regulated by the states after the point of viability. If the court were to reconsider Roe, I suspect that both sides would again be unsatisfied with the results. Here’s why I think so: Science.
In 1973 the court chose to use viability, even with artificial aid, as the point at which an infant secured a right to life, but the tools available to the courts, and to medical science, were limited. It wasn’t until 1975 that ultrasound technology began to be introduced to obstetrics. At that point, two years after Roe, a fetal heartbeat could be detected and ultrasound could show the skull and a general body shape. Today, the available technology is dramatically different. Now, ultrasound technology can provide three dimensional images of the fetus and parents can go home from the doctor’s office with “photographs” of their baby months before birth and long before “viability.” While the 1973 court looked to viability as a means to determine when life began, medical science is now pushing against that boundary. While infants in 1973 were considered viable at 28 weeks and possibly to 24 weeks, infants today routinely survive at 25 weeks and as early as 22 weeks. While there were limited options in determining the beginning of life in 1973, today’s technology can detect a fetal heartbeat at 22 days gestation, brainwaves at six weeks and a fully functioning nervous system at 20 weeks (and some argue for an even earlier date).
Based only on the court’s 1973 ruling, the present capabilities of medical science, and the current political winds, I think that it is very likely that a rehearing of Roe v. Wade would uphold a right to privacy (and thus a right to choose an abortion) but would also uphold more restrictive definitions of what constitutes life, when life begins, and the point at which an infant secures a right to life.
Once again, both sides would win…
…and neither side would be happy with the outcome.