CHOICE HEARS VOICE, REDUX

Silver Rights reacts to my post yesterday with a common misperception:

Anything that humanizes the fetus can be used by the anti-abortion movement to argue that the fetus is a person from conception. However, late term fetuses like these are already protected under Roe v. Wade, so claims made in regard to them are already answered to an extent.

Actually, Roe doesn’t protect fetuses at all. It merely says that, in the third trimester, states have a right to regulate.

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term. Pp. 147-164.

(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. Pp. 163, 164.

(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. Pp. 163, 164.

(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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

(Source: FindLaw, Roe v. Wade)

So, contrary to the conventional wisdom, Roe merely enjoins legislatures from passing certain laws. Furthermore, the trimester framework of Roe has been obviated by Webster vs. Reproductive Health Services (1989), which has substituted a fetal viability standard:

(d) The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe’s rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from reconsidering prior constitutional rulings, notwithstanding stare decisis. E. g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 . The Roe framework is hardly consistent with the notion of a Constitution like ours that is cast in general terms and usually speaks in general principles. The framework’s key elements – trimesters and viability – are not found in the Constitution’s text, and, since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. There is also no reason why the State’s compelling interest in protecting potential human life should not extend throughout pregnancy rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned. Pp. 517-520.

Finally, partial birth abortions, or “dilation and extraction” if you prefer, while usually done mid-term (there’s no need to do them early), are sometimes done near the time when the child would otherwise be delivered. So, yes, the study referred to in my post sheds light on the issue.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.