When the U.S. Supreme Court overturned Roe v. Wade, it took an especially intimate and often wrenching decision away from women and placed it in the hands of politicians. And the politicians are taking their cue from a mixed bag of religious extremists and faux philosophers ready and willing not only to tell us the meaning of life, but to help write laws imposing their vision on the rest of us.
The Roe v. Wade decision of 1973 did not presume to define life. It did establish an expectant woman’s right to make her own health care decisions, within reason and within the context of three stages of pregnancy.
Accordingly, during the first trimester the abortion decision must be left to the medical judgement of the woman’s physician (presumably following the wishes of her patient). After that, the State was allowed to regulate abortion in ways reasonably related to maternal health. And beyond the point of viability, when the fetus could be expected to survive outside the womb, the Court said the State may regulate or proscribe abortion except when it is necessary to protect the life or health of the mother.
The Court went on to define the State’s interest, after viability, in terms of the “potentiality of human life.” Not “existing” human life.
They did acknowledge the theory that life is present from the moment of conception, but also said “a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth.” Nevertheless, the acknowledgment that potential life is involved did open the door for the State to act “beyond the protection of the pregnant woman alone.”
This was the Court’s way of recognizing the interests of both the State and the individual, namely the woman, and setting the conditions for lawmakers to enter the picture. This reasonable enough solution lasted fifty years, despite relentless efforts to overturn it. It only fell once the Republicans achieved the complete politicization of the Supreme Court.
Now we see the rush of Republican controlled state legislatures to criminalize abortion, either by passing new laws or by resurrecting century-old prohibitions. The theory that life begins at conception is now, according to the newly empowered, self-righteous legislators, established fact.
One thing that went down the drain when Roe was overturned was the section of the decision where the Court showed that throughout history the answer to “When does life begin,” and when abortion is wrong, was anything but established fact. It depended on who you ask and when.
The Court spent multiple pages tracing attitudes about abortion, beginning with the ancient Greeks and Romans. For example, the Hippocratic Oath stated no physician would do anything to produce an abortion, and some schools of philosophy considered an embryo animate from the moment of conception. But this was not at all unanimous among ancient physicians, nor was it debated without consideration for the life of the mother.
Later, common law addressed the question of when a fetus attained what could be called life. While there was little agreement about the precise timing of this event, there was agreement that prior to it the fetus was not regarded as a life apart from its mother. Christian theology and canon law came to fix this point at 40 days for a male and 80 days for a female.
Under common law, abortion before “quickening,” or the first recognizable movement at about 16 to 18 weeks, was not an offense. The Court also noted the few historic examples of common law abortion prosecutions in concluding that abortion at any phase was never firmly established as a crime.
During the early 1800s, English and American law preserved “quickening,” as a legal marker after which abortion was criminalized to varying degrees. But by mid-century, even this distinction disappeared in statutory law, and by the end of the 1950s a large majority of jurisdictions banned abortion at any time unless done to preserve the life of the mother.
Alternatively, the Court recounted the evolution of abortion policy on the part of the American Medical Association. The AMA played a significant role in enacting the stringent criminal abortion legislation in the late nineteenth century.
Their position evolved such that in 1967 they allowed for abortion in cases where the mother’s life was threatened, or the fetus suffered an incapacitating deformity, or in cases of rape or incest. By 1970 they recognized changes in public attitudes in favor of making abortion more freely available, and described it only as a medical procedure to be performed in the best interest of the patient.
The logical consequences and complications of legislators’ unquestioned certainty that life begins at conception, or some arbitrary point before birth, are already becoming apparent. The most obvious effect is that legislators now appoint themselves advocates for the fetus, obviously without asking anyone, sometimes at the expense of the pregnant woman, her health, or her wishes.
In this self-appointed role, they not only put themselves in the room when women and their physicians make health care decisions, they assume veto power over those decisions.
Nor do they stumble over the many inconsistencies they are forcing upon the rest of us. In effect, we could end up with 50 different versions of when life begins. Is it at conception? Or the first electrical pulses which evolve into a heartbeat? Or an arbitrary measure? Four weeks? Six weeks? Eight weeks?
Anything, of course, but the standard of viability which served so well for fifty years.
These are not trivial or rhetorical questions. Getting the answer wrong could result in imprisonment, or worse, as we return to pre-Roe horrors. Women will tear themselves apart, or be torn apart, not just by predatory quacks but in accredited hospitals where second-guessing and fear of prosecution define the practice of medicine.
As usual these days, the question for us is “Now what?” It took fifty years to take away women’s right to abortion, and the “pro-life” judges who have turned the Supreme Court into just another political player are not giving it back any time soon.
I imagine situations where voters can reward some politicians, or exact a price from others. But it is hard to see how any politician who considers themselves privy to the meaning of life would ever doubt the righteousness of even their smallest thought.
I suspect we will lurch forward as an intractably divided country, our rights depending on the whims of legislators wherever we happen to live.
It will become the task of Congress to pass superseding legislation enshrining the right to abortion in federal law. But who is going to obey a law which, they have convinced themselves, legalizes the murder of babies?
Who among those blessed with knowing the meaning of life, not to mention having the Supreme Court on their side, would ever submit to such lesser powers?
Erich Obermayr is an author, community activist, and career archaeologist specializing in sharing historical and archaeological research with the public. He writes about Nevada politics and social issues. He lives in Silver City, Nevada, with his wife. Support Erich’s work in the Sierra Nevada Ally here.
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