The 1973 Roe v. Wade decision of the Supreme Court short-circuited the democratic processes of debating abortion in the states.
The court imposed on the whole country one of the most extreme abortion regimes in the world. The United States is now one of only seven countries out of 198 that allows abortions past 20 weeks, the others being North Korea, China, and Vietnam as well as the Netherlands, Canada, and Singapore.
Opinion on Roe was divided within the parties and among feminists. The latter opposed abortion on sanctity-of-life grounds; they promoted anti-abortion laws in the 19th century and opposed their repeal in the first half of the 20th. Even Planned Parenthood didn’t advocate for or provide abortions until after its anti-abortion founder, Margaret Sanger, had left the scene in the 1960s.
So the Supreme Court decision of 1973 came very quickly, cutting off democratic debate and decision-making at the state level. It came with little consideration, even by the court itself, and on the basis much false information (such as fabricated statistics of maternal deaths from illegal “back-alley” abortions).
Roe v. Wade was supposed to settle the matter. But it was fiercely criticized from the first, even by liberals and leftists such as Harvard constitutional law professor Laurence Tribe, judicial adviser to Barack Obama’s 2008 presidential campaign.
Tribe wrote in an article for the Harvard Law Review in 1973, “One of the curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Another liberal law professor (an abortion supporter), John Hart Ely, concluded in a 1973 article for the Yale Law Journal, “Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.”
The opinion is bad, he wrote, “because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Roe v. Wade on a Collision Course With Itself
Justice Sandra Day O’Connor’s dissent in the 1983 case Akron v. Akron Center for Reproductive Health noted that “the Roe framework is clearly on a collision course with itself.”
“As the medical risks of various abortion procedures decrease, the point at which the state may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception,” O’Connor wrote.
In any case, she said: “The state interest in potential human life is extant throughout pregnancy. In Roe, the Court held that although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable.
“The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward.
“Accordingly, I believe that the state’s interest in protecting potential human life exists throughout the pregnancy.”
Even allowing for the notion that the humanity of the fetus was potential rather than actual from its beginning, there was no coherent basis for arguing that the state’s interest in protecting that potential life—or the child’s right to protection from intentional killing—was less salient in the earlier stages of pregnancy than the later.
The Pro-Abortion Argument Collapses
The argument of moral philosophers such as Robert George and Christopher Tollefsen was that the human fetus (or offspring, which is what the Latin word means), was a full human being, though very small and at an early stage of development.
Advances in embryology supported this argument, in showing that the question on which the court professed agnosticism, of when human life begins, was a matter of “settled science” no less than of moral philosophy.
We all begin life as a zygote, or fertilized egg. From our tiniest beginnings, we contain within ourselves the principle of existence that, in the absence of disease or death (accidental or induced), expresses itself through all the stages of human development. The human fetus, whether or not our eyes can see it as such in the earliest days of its life, will develop, if it lives, through infancy, childhood, and adolescence into an adult man or woman and not into a fox or rabbit. It is from the start a human life, not a mere clump of cells, as the most dehumanizing pro-abortion advocates sometimes put it.
The rationale for Roe, for withholding legal protection from human beings in the early stages of life, has become less persuasive, not more, over time. This is a result not only of the incoherence of the Roe decision itself, which even abortion supporters such as Justices Ruth Bader Ginsburg and Sandra Day O’Connor recognize. The advances in science and technology noted by O’Connor have also made the pro-abortion position less credible to millions of young people.
The clump-of-cells view of the fetus cannot withstand a young pregnant woman’s view of her preborn child as she watches him or her via ultrasound. Growing evidence of the pain felt by babies as they are ripped apart by an abortionist contributes to the growing revulsion.
Exposés of the real-life horrors of abortion have became harder to deny as films like “Unplanned” (2019), the story of how Planned Parenthood clinic director Abby Johnson became a pro-life activist, or “Gosnell: The Trial of America’s Biggest Serial Killer” (2018), have reached wide audiences despite the efforts of mainstream media to ignore or suppress them.
Videos by the Center for Medical Progress exposing Planned Parenthood’s alleged involvement in organ harvesting and the selling of aborted babies’ body parts, and the cynicism of Planned Parenthood staff caught on tape, have horrified those who watched them. Like “Unplanned” and “Gosnell,” they undercut efforts to trivialize the act of abortion.
The Turn to Extremism
There is arguably no moderate pro-abortion position, since abortion involves the intentional killing of an innocent human being. Similarly, there is nothing “extreme” about wanting to protect the life of a child conceived in rape, who is as innocent, including of his father’s crime, as any other human in the womb.
Proponents of legal abortion therefore sometimes deny the humanity of the fetus, claiming that it is a mere clump of cells or, at most, a potential human being. Others, at least, recognize the anguish and regret of those who undergo abortion. As Hillary Clinton often put it in 2008, abortion should be “safe [for the mother], legal, and rare,” with the emphasis on “rare.”
Now, that position appears moderate compared to the enthusiastic support by all leading Democrats today, Clinton included, for abortion at any stage and for any reason. It appears sober and decent compared to the boasts and celebrations of abortion, the cheers and whoops on show at the signing of the Illinois bill that removes all restrictions, including those on partial-birth abortion.
But such sweeping measures show that proponents are not just aiming to remove the pregnant woman’s burden of carrying a fetus she doesn’t want. At that point of the birthing process, the child is no longer in her womb and could, even much earlier, have been as safely birthed alive through a C-section and made available for adoption. Abortion has become in Illinois the right to a dead child, the right not to be a mother even if your child would be raised by other parents.
Why do Democrats oppose the Born-Alive Abortion Survivors Protection Act of 2019?
That and similar legislation simply aims to ensure that a baby who survives an abortion attempt is entitled to the same legal protections as any other child. They cannot mean to defend a woman’s right to control her own body, since the baby is no longer in her body. The issue has nothing to do with women’s bodily autonomy or reproductive health.
Opposing ensures, not the autonomy of the mother’s control of her own body or her “reproductive health,” but the right of a mother to the death of her own baby.
In short, as Roe unravels, and with the issue expected to return to the states from which the Supreme Court wrested it 46 years ago, Democrats and pro-choice advocates are becoming ever more extreme as they entrench their position as the party of death.
Paul Adams is a professor emeritus of social work at the University of Hawaii and was a professor and associate dean of academic affairs at Case Western Reserve University. He is the coauthor of “Social Justice Isn’t What You Think It Is” and has written extensively on social welfare policy and professional and virtue ethics.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.