What is at stake in Roe vs. Wade goes far beyond a squabble between left and right
A few days ago, a draft opinion of the United States Supreme Court was leaked to Politico, suggesting that the majority was inclined to overturn the 1973 Roe v. Wade decision enshrining a connotational right to abortion. The court has confirmed that the draft is authentic.
Although the draft is not final, it does strongly suggest that the court has already voted on the case and that a majority of justices is in favour of overturning Roe v. Wade. If that happens, it will bring an end to the notion that there is a right to abortion protected by the American constitution, and effectively leave the definition of abortion policy back in the hands of the individual States.
The extraordinary leaking of such an important draft opinion predictably opened a firestorm of political controversy.
It was insinuated by a report in The New York Times, for example, that the court had become unduly politicised or had become an instrument of conservative ideology rather than law. Apart from the fact that the original 1973 ruling was hardly an orthodox piece of constitutional interpretation, this sort of charge fails to engage the questions before the Court on their legal merits. As such, it looks more like a rhetorical deflection than a serious argument.
Even someone who is an ardent supporter of abortion rights should be more than capable of recognising that Roe v. Wade touches upon ethical and constitutional matters of fundamental importance that go far beyond the question of one’s political affiliations, or of whether this or that ideology, be it conservative or liberal, holds sway on the court.
The original majority opinion of Roe v. Wade in 1973 assumed that the unborn human being inside the mother is not deserving of the same fundamental protection of the law as that afforded born infants. It essentially contended that the mother’s choice to abort was indeed protected by the Constitution, whereas the Court has never, to my knowledge, suggested that anyone had a constitutional right to end the life of an infant after birth. In other words, it was unwilling to authorise infanticide.
In Roe vs. Wade, the Supreme Court found that the Constitution contained an implicit right to privacy, and that this right prevented governments from unduly restricting a woman’s access to abortion services. Many of those alarmed by the leak suggesting Roe v. Wade was about to be overturned have focused on this aspect of the decision.
But it also set down another important principle. The majority opinion deemed that the unborn foetus was not to be considered a “person” protected by the law, in the context of the Fourteenth Amendment guaranteeing “equal protection of the laws” and the rights to “life, liberty, and property” to all persons.
Finally, the court attempted to sidestep the question of when human life begins, on the grounds that this question was medically and philosophically unsettled:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.
Yet even if some medics and philosophers dispute the exact moment when human life begins, the unborn foetus is biologically and genetically identical and continuous with the human being after birth. Under these circumstances, a strong case could also be made for treating the unborn as a person rather than a non-person under the terms of the Fourteenth Amendment. For surely we should err on the side of protecting rather than stripping away fundamental rights from beings who are indisputably human from a biological and genetic perspective.
Many important ethical and constitutional questions have the potential to be politicised. And abortion is perhaps as clear an example of this as any. For example, currently, in the United States (according to this Pew Research Center poll conducted in April 2021), a majority of self-identifying “conservative Republicans” tend to oppose widely available legal abortion, while a majority of self-identifying “liberal Democrats” tend to favour the “right to choose” affirmed in Roe v. Wade.
The politically charged nature of the abortion debate tends to lead people to reduce all arguments for and against essentially as ornamentation for a predefined political posture. But just as the political explosiveness of the slavery question did not automatically invalidate argumentation about the moral and legal standing of slaves in the US before the Civil War, the political explosiveness of abortion does not automatically invalidate thoughtful argumentation about the moral and legal standing of the unborn or reduce it to a form of political cheer-leading.
The personhood of the unborn
The two questions touched on in Roe v. Wade -- the constitutional standing of the choice to abort and the moral and legal standing of the unborn -- are intimately connected.
If, for example, one takes the view that the unborn is a full member of the human family and as such, is deserving of full legal protection in virtue of his or her humanity, then it would be very strange indeed if one also took the view that the choice to abort were protected from interference by third parties by the federal constitution of the United States. For that would amount to saying that the choice to take an innocent human life was not only permitted by the federal constitution but protected by it from third-party interference.
If one concedes that unborn human life is in fact deserving of legal protection in virtue of the humanity of the unborn (or that humans should be considered as “persons” under the Fourteenth Amendment), one cannot coherently argue that the Constitution prohibits a State government from protecting unborn human life.
Indeed, if we assume that unborn human beings deserve full legal protection, it would seem strange if a Constitution that protects other fundamental human rights, such as the right to a fair trial, or the right to property, did not extend a similar protection to the bodily integrity of the unborn.
In order to endorse the mother’s right to abortion established by Roe v. Wade, one would have to take the view that unborn human life was not in fact deserving of full legal protection in virtue of its humanity, and that whatever potential interests the unborn may have in living and in thriving, may be overridden by the prerogatives of his or her mother, or her own interest in not being burdened with a child, or not carrying a child to term.
That puts the supporter of Roe v. Wade in a difficult position. For having rejected humanity as a sufficient basis for full legal protection, it is difficult to see a principled reason for ruling out infanticide if that is what the parents want. Indeed, the plausibility of “after-birth abortion” has been defended by some bioethicists.
Supporters of Roe v. Wade who would not go so far as advocating infanticide need to find a basis for legal protection of newborn infants that does not entail a similar level of protection for unborn infants. They need to point to characteristics of newborn infants that place them squarely within the rights-bearing community, which are not morally arbitrary and which are not shared by their unborn counterparts.
That seems like a rather tall order to me.
This is a slightly edited version of a post on the author's Substack, The Freedom Blog.
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