Not long after Roe v. Wade was decided (1973), a notable figure in medical research opined that the Court had not been liberal enough in fashioning this right to have an abortion virtually through the end of the pregnancy. He suggested that the parents be given four or five more days to gauge any disabilities in the child and whether they wished to keep her alive. Let’s imagine a scheme in which the parents were given as much as 30 days to “try out” their comfort with the child. And let’s imagine that prolifers persuaded a legislature to cut that down to 15 days. We can readily assume that the pro-choicers would go into panic mode, seeing in this move the portents of sweeping away that right to abortion.
But of course nothing in the shift of 15 days would have marked any difference in the nature, or human standing, of the child.
And yet we have had a kind of replay of this scene over the last few weeks. The Supreme Court set off tremors in the land when it announced that it would take up a case challenging a recent law in Mississippi that would bar abortions after 15 weeks of pregnancy (Dobbs v. Jackson Women’s Health Organization). That move would notably extend the restrictions of the law into a period before the onset of “viability,” which has been at about 23-24 weeks these days—and perhaps even earlier. There is a difference, then, of only about eight weeks, and yet that has been enough to stoke the fears and warnings that Roe v. Wade could now be overruled. But once again, that shift in eight weeks does not mark anything different, anything less than human, in the baby being aborted. Nor would it make a difference if we traced matters back 15 days, or even 15 or 20 weeks back to the point in the pregnancy when the very same being was an embryo. She has never been anything less than human, and never merely a part of her mother’s body.
But the Court has firmed up “viability” as the critical marker, for as the judges persist in saying in a convention of imbecility, the State may act then to protect “potential life.” Potential life? A pregnancy test marks the fact that something is indeed alive and growing in the womb. If there were not, an abortion would be no more relevant than a tonsillectomy. But if there was something alive and growing there—and not a tumor—it could be nothing other than a child in the making.
That embryo may be a “potential outfielder” or “potential stockbroker,” but he has never been merely a “potential human child.”
Chief Justice Rehnquist once made the obvious point that the scheme of “trimesters and viability . . . [is] not found in the Constitution’s text.” But when Justice Anthony Kennedy made his move to preserve Roe v. Wade (in Planned Parenthood v. Casey, 1992), he insisted that there was a need to “draw lines” in the regulating of abortion, and “there is no line other than viability which is more workable.” More “workable” for what? Not for determining if that small being in the womb is turning into a human being from something less than human. Kennedy fell back upon the familiar “explanation” that viability marks “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” But even ordinary folks, without graduate degrees, readily grasp that people don’t lose their standing as human beings when they suddenly fall ill and cannot survive without the care of others. To take the curious line that weakness now works to extinguish any rights to solicitude and care is simply to back into the old doctrine of the Right of the Strong to rule, or Might makes Right. The inscrutable point for me is why no conservative justice over the last 48 years has thought it apt to make that simple argument, to spotlight the moral emptiness of that marker of “viability.”
Back in 1989, in the Webster case, the Court seemed to have taken a first step in returning the issue of abortion to the political arena, where citizens and legislatures could argue and vote on the question of who is protected under their laws on homicide. Chief Justice Rehnquist, writing for the majority, planted the question of “why the State’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability.” A conservative majority now on that same Court clearly understands that “viability” is no serious marker; that the same reasons for barring abortions at 15 weeks would carry all the way down to protect the child in the womb from the beginning. Still, even a conservative majority may be quite cautious about overturning Roe in a single major stroke. But the defenders of abortion, in their panic, feigned or real, may have confirmed the alternative path. They have ever put themselves in opposition even to the mildest restrictions on abortion—the Democrats in Congress have been virtually unanimous in resisting even the bill to protect the babies who survive abortion. For they see the principle that lies at the heart of the thing: Once the child in the womb is recognized as a human being, on a plane no less than theirs, with a claim to the protections of the law, there is no obvious marker, in age or development, that separates that child from the rest of us. In other words, the adamant defenders of Roe see their whole position unraveling, with no stopping point.
The advantage of moving step by step is that it offers the public the chance to school itself step by step: to consider a string of restrictions on abortion that people would find reasonable at every stage, as in barring late-term abortions, or abortions when the beating heart of the child can be detected. After a while, after a chain of steps that the public has come to see as patently reasonable, it could take just one more to put Roe, finally, away. If the Supreme Court settles for that limited decision—the decision simply to sustain the law in Mississippi—that could be the gentle step that puts the right to abortion “in the course of ultimate extinction.”
The Democrats in the House, much in need of tranquilizers, have become a party primed now to set off waves of violence in the streets if Roe v. Wade were overturned in a decisive stroke. We have every reason to expect that the response will be explosive: We will see even fiercer demands to pack the Supreme Court, enact Roe v. Wade as a statute, and encourage judges in the separate states to find a right to abortion in their own constitutions. Some of us remember the reaction that flared in response to the Webster case in 1989, when the Court seemed to be taking the first steps to return the issue to the political arena. At that time pro-life congressman Jim Courter in New Jersey found some of his female constituents inflamed by the notion that they were about to be dispossessed of a freedom they had come to consider as far more fundamental for them than the freedom of religion and speech. Courter did a 180-degree turn overnight into an Eastern pro-choicer politician—and then faded from politics. Given the rising cohesion of the Democrats now on this issue, the outburst of 1989 may come to seem a muted affair.
The question then is whether that opposition can be gently disarmed and forestalled if the Court settles on the less decisive move and sustains the law in Mississippi without overturning Roe. And yet the serious concern now is that the disarming approach may disarm no one. For the partisans of abortion know that there is no clear stopping point after the marker of “viability” is left behind as a point of little consequence. In that case they may well treat even the more limited judgment as the move that puts Roe in a position of terminal atrophy. That move may not be so incendiary if most of the public sees that more limited decision as a judgment not too astounding at once.
But what might be offered to prepare the public mind in this way? The drafters of the Act had sought to soften the public reception by remarking that, thanks to devices ever more sophisticated, we know far more about the child in the womb than we did in 1973, when Roe was decided. But they really offer almost nothing other than what we already knew 50 years ago.
And in the degree of compelling detail, they hardly compare to the points set down by the lawyers for Texas in Roe v. Wade, drawing on the most up-to date findings in embryology:
About seven to nine days after conception, . . . contact with the uterus is made and implantation begins. Blood cells begin at 17 days and a heart as early as 18 days. This embryonic heart which begins as a simple tube starts irregular pulsations at 24 days, which, in about one week, smooth into a rhythmic contraction and expansion. . . .
[T]he ECG on a 23 mm embryo (7.5 weeks) presents the existence of a functionally complete cardiac system and the possible existence of a myoneurol or humor regulatory mechanism. All the classic elements of the adult ECG were seen. Occasional contractions of the heart in a 6 mm (2 week) embryo have been observed [along with] the classical elements of the ECG tracing of an adult in a 15 mm embryo (5 weeks).
. . . By the end of the 20th day the foundation of the child’s brain, spinal cord and entire nervous system will have been established. By the 6th week after conception this system will have developed so well that it is controlling movement of the baby’s muscles, even though the woman may not be aware that she is pregnant.
The case for the Act does not depend, then, on some dramatic new revelation about the nature of that child in the womb. What the sponsors will cling to more firmly is the plea that a limit of 15 weeks stands a better chance of sparing the fetus from excruciating pain; the pain of being poisoned or dismembered. That concern for the pain suffered by the child was most notably raised in the mid-80s in a penetrating essay in the Human Life Review (“Pain in the Unborn,” Winter 1981) by our late friend, professor and federal judge John Noonan. The piece was relayed to President Reagan, who then mentioned the matter in a State of the Union Address that caught the attention of the public. Hearings were held on fetal pain in the Senate Committee on the Judiciary. In those hearings, my late dear friend Daniel Robinson refuted the claim of one of the pro-choice doctors that a fetus cannot feel pain at 12 weeks. Doctors on the other side testified that fetuses were not as likely to feel pain because their cerebral cortices were not well developed. Robinson pointed out that “‘the anatomy of pain’ throughout the animal kingdom . . . does not seem to avail itself of any specific region of the cerebral cortex.” He recalled cases of brain cancer where it was necessary to remove as much as half of the cerebral cortex, and yet the patients did not lose their sensation of pain. The reaction to pain, he said, is reflexive; it depends on instant recognitions “for which the cerebral cortex may be utterly unnecessary.” And “when our hand touches a red-hot object we do not engage in syllogistic modes of deliberation in search of an appropriate response.”
But then he quickly brought matters down to solid ground by asking, “What difference would it make? If the human fetus is regarded as a human being deserving of our solicitude, then we surely would oppose its death even if pain were not involved. After all, what is wrongful in abortion is the taking of a human life and this remains wrongful even if painless methods were developed and adopted.”
As everyone understood, the concern to avoid pain to the child in the womb could be met by simply requiring anesthesia. The right of the woman to the abortion would then remain unimpaired. But that was not a counterclaim that defenders of abortion were eager to make, for it simply brought home again the jarring fact that what was being extinguished was a human life. And this was the understanding that had been at work among prolifers for years as they pressed to bar at least late-term abortions, or abortions based on the sex or race of the child. The prolifers have never thought that the onset of pain marked the arrival of the fetus to a human standing. And neither could they have possibly thought that the beating of the heart marked the beginning of life. The beating heart was just another manifestation of an already living being that was powering and integrating the features of its own growth. Rather, these proposals by prolifers over the years have been put forth in the hope of drawing the public into the recognition that what was being killed in these surgeries was a child who has never been anything but human from its first moments, drawing on the genetic pool of the two people who conceived him. The imminent risk in this approach was that a large segment of the public could indeed come to think that any of these moments in development actually marked the emergence of a truly human life—or a human life that was now worthy of being protected.
It is a credit to the legislators in Mississippi that they were willing to post their own awareness of this enduring concern. And so they made this provision:
Nothing in this section shall be construed as creating or recognizing a right to abortion or as altering generally accepted medical standards. It is not the intention of this section to make lawful an abortion that is otherwise unlawful.
In this muted passage, they anticipate the deliverance held out to us for many years: that Roe v. Wade will someday be decisively overturned, and in a stroke, all of the laws on abortion, still on the books in the states, will come back into force. For the conservative judges on the Court, that is the promise—and the risk—in overturning Roe in a decisive stroke. And we are reminded that, for justices on the Supreme Court, “statecraft” comes with the territory. They may have a passion for coherence and doing the right thing, but they find themselves now enveloped in a political scene that has become far more turbulent. The conservative judges on the Court have long known what is specious in all of these markers in the development of an unborn child. It is entirely possible that they will lose their patience for playing along further in this moral charade. Given the facts of the case, they may decide that the only coherent option is finally to put Roe away. But they also know that a political earthquake can overpower even just and rightful policies and institutions. And they know that a plausible path of prudence may be open. There is the inescapable plight of judges who know that they cannot be entirely detached from political statecraft. But it also supplies the ground of hope: that in the hands of this current Court, something good will yet come.
Hadley Arkes is the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding, and the Ney Professor of Jurisprudence Emeritus at Amherst College.