Tuesday, January 22, 2008

Roe v. Wade at 35

Today is the 35th anniversary of the Roe v. Wade Supreme Court decision that, as it is usually put, “legalized abortion.” If you would like to spend the entire day reading the actual decision, you can find it here. I find this section of the Supreme Court’s finding especially interesting:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

If I understand this correctly, the Court held that the State could restrict abortion more as pregnancies advanced toward viability of the fetus. The justices held that only abortions in the first trimester were beyond the reach of State regulation. They went on to say,

The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.

So, unless I am missing something (and I confess my ignorance of subsequent legal decisions in the matter), the commonly heard assertion that Roe v. Wade legalized “abortion on demand” is incorrect. The decision apparently held that decisions about abortions in the first trimester were to be left strictly to the woman and her physician. That does seem to approach “abortion on demand” in the first trimester.

The issue of abortion tears at me when I think about it. Folks involved with the Right to Life organization seem to have as their goal the outlawing of all abortions. At least, that is my understanding of the motive behind the proposed Human Life amendment to the Georgia constitution. The proposed amendment states,

Paramount right to life. (a) The rights of every person shall be recognized, among which in the first place is the inviolable right of every innocent human being to life. The right to life is the paramount and most fundamental right of a person.
(b) With respect to the fundamental and inalienable rights of all persons guaranteed in this Constitution, the word 'person' applies to all human beings, irrespective of age, race, sex, health, function, or condition of dependency, including unborn children at every state of their biological development, including fertilization.

If it could be legally established that personhood extends to “unborn children at every state of their biological development, including fertilization,” then obviously the due process clauses of the 14th Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”) would apply to unborn children at every stage of development, from the very moment of conception.

It seems to me that as things now stand, the due process to which the mother is entitled trumps whatever “rights” the unborn child, at least in the first trimester, might have. Were the Human Life amendment to pass, then due process would become a right of a fertilized ovum and that would trump the due process rights accorded to the mother.

Given that the mother is a human being whose life is to be valued, I simply cannot support the outlawing of all abortions. Respect for the mother’s life and for the lives that would be impacted by her death make it necessary for abortion to be available for medical reasons.

That is one reason that I don’t march or otherwise get directly involved in most “pro-life” activities. I can’t support the agenda of outlawing all abortions.

On the other hand, there is absolutely no doubt that we have arrived at a place in our national consciousness in which the lives of the unborn are treated not as lives at all but rather as impediments to be removed.

I was struck by this as I read a Washington Post article on this Roe v. Wade anniversary about the increasing use of the “abortion pill” RU-486. Author Rob Stein talked about and quoted some women who had used the pill. One, a 41-year-old nurse, said that she and her husband decided to use the pill to end her pregnancy. The circumstances? They had a three-year-old son and she was about to start a new job. It was her second abortion.

Another was a 25-year-old office administrator who used RU-486 when she became pregnant and she and her fiancé decided that they were not ready to become parents.

Yet another was a 24-year-old who became pregnant as she was preparing to graduate from college. She and her boyfriend decided to terminate the pregnancy because they were not able financially to support a child.

God knows that I am in no position to stand in judgment of these or any other people. But it troubles me that people would decide to have an abortion for such reasons.

I know how old-fashioned this will sound, but it is nonetheless the truth: if we would follow the teachings of the Bible and not engage in premarital sex, then the risk of having a child out of wedlock would be reduced to zero. I fully support the promotion of abstinence as the best form of birth control outside of marriage.

But…people are going to have sex before marriage. They always have and they always will. Therefore, we need to promote responsibility alongside the promotion of abstinence. Young people should be taught about effective methods of birth control that will protect against pregnancy as well as against sexually transmitted diseases. Ideally, parents should be the ones to do the teaching. But, they often will not. Therefore, it unfortunately often falls to the schools. Might the church be a better venue? That’s a scary but necessary thought.

So much of this question boils down to the issue of when life begins. I’ll say this much: when a fetus become viable it is a life and before it becomes viable it is at least a potential life.

Perhaps I should be ashamed that I don’t march against abortion. Perhaps more legislative remedies to the solution should be sought.

But the issue might be better addressed by helping families develop the skills to teach their children what they need to know about sex, by trying to create a culture that puts the needs of others—even those of the unborn—before the needs of self, and by moving toward valuing the lives of those that have already been born by advocating for economic and health care policies that will do the most good for the most people.

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