The Line between Roe and Wade

Forty years after the Supreme Court found a constitutional right to abortion in the Fourth Amendment on behalf of “Jane Roe”—a 25-year-old single mother in Texas named Norma McCorvey—America is as  unsettled as ever on the issue. This is for two reasons that, by their nature, are at odds with each other. The first is that abortion is a metaphysical enigma to which neither wisdom nor experience provides a definitive answer; we’re therefore left to fashion an imperfect political response to a question that’s fundamentally spiritual. The second is that, as with other more banal political matters these days, into the vacuum of what human beings can know about the soul rush ideological extremes that concede nothing to ambiguity let alone another point of view.  

At the center of the dilemma over terminating a pregnancy is this consideration: At what point does a biological entity initially part of a woman’s body cross into the realm of its own humanity? Merely asking this is anathema to those opposed to abortion under any circumstances, because thinking independently about such things is anathema to religious orthodoxy which doesn’t allow for the possibility that the fetus ever is something unto the woman. Conversely, trucking in the vocabulary of metaphysics and fetal extermination unsettles those who believe most fiercely in a woman’s right to an abortion because it allows for the possibility that infanticide might ever be involved. The abortion argument rages because from the beginning it’s been hijacked by absolutists even as a public so uncomfortable with abortion that it can’t bear to discuss it gives every evidence of being somewhere between the two extremes.

Conservatives are right about Roe v. Wade. To extrapolate from the Fourth Amendment’s protection against search and seizure a right to privacy was reasonable; to extrapolate from a right to privacy a constitutional right to an abortion was extraordinary. This isn’t to say that the freedom to have an abortion isn’t worth formulating. Many freedoms aren’t expressly established by the Bill of Rights, which is why the Ninth Amendment states that the government can’t presume an individual right doesn’t exist simply because it isn’t so established. It is to say that Roe v. Wade had less to do with legal logic than with what liberals at the time considered the political necessity of putting the Constitution on the side of abortion—something about which even progressive scholars like Laurence Tribe and Alan Dershowitz, columnist Michael Kinsley, and Justice Ruth Bader Ginsburg have expressed skepticism down through the years. Out of the original flawed decision grew flawed extending arguments, the most specious of which (before it became part of the more recent conversation about health-care reform) committed the government to subsidizing abortions for those women who can’t afford them in order that they’re “guaranteed” their constitutional freedom. It could well be that the government should subsidize abortions for poor women if there’s a national consensus to do so. But the First Amendment that recognizes a man’s right to a free press doesn’t obligate the government to buy him a newspaper, a laptop, or a pencil, and the Second Amendment that recognizes a man’s right to bear arms doesn’t obligate the government to buy him a gun.  

For much of the last 40 years, the pro-choice movement’s political victories undercut its moral authority, which reached a nadir in the 1990s with the controversy over late-term or “partial birth” abortions. Having lost confidence in its ability to mount a medical case let alone a moral one, the movement reflexively fell back on the slippery-slope contention that has come to vex so much political logic, which is that to ban late-term abortions inevitably opens the door to banning all abortion (the National Rifle Association makes a similar argument against gun regulation). This contention only reinforces the dynamic that’s framed a 40-year debate by which we either outlaw all abortion beginning at the moment of conception or permit all abortion up until the moment of birth.  

Whether the absolutism of one extreme answered or precipitated the absolutism of the other now matters as little as the original soundness of Roe v. Wade itself. Constitutional freedom always has been evolutionary notwithstanding the insistence of strict constructionists who know nothing about the document or about those who wrote and debated it; two generations of women after Roe v. Wade, the right to an abortion now is encoded in the genetics of freedom. In the meantime the intellectual bankruptcy of the pro-choice movement has been matched by a meanness that characterizes a pro-life movement often led and voiced by the gender that never has babies (and sometimes writes articles like this). The pro-life movement’s essential problem is with the nature of democracy, which not only accepts but insists that no one is ever completely right or wrong and that in this fact lies resolutions born of compromise. Metastasizing into something hard and ungenerous (and un-Christian) enough to make stupefying statements about rape, at its core much of the pro-life movement isn’t about saving fetuses. At its core, as codified by the unforgiving platform of the Republican Convention last summer, much of the pro-life movement is about middle-aged men punishing young women for having sex.  

Should we assume there’s an answer to when the life of the soul begins, nonetheless—barring some visitation of divine insight more convincing than the one to which religious people lay claim and which God has chosen to deny the rest of us—that answer remains unknowable. Before the Supreme Court interceded to declare the constitutionality of abortion, a national plebiscite on abortion rights in which only women could vote would have been ideal, but we don’t submit constitutional rights to plebiscites, so those disinclined to join one camp or the other at one far end or the other of the debate are left to forge an uneasy consensus. Notwithstanding the fallacies of Roe v. Wade, the law has been “settled” too long now to be overturned; conservative justices William Rehnquist and Sandra Day O’Connor implicitly acknowledged this 20 years ago. The decision’s stipulation of 24 weeks as the point at which a fetus becomes “viable,” however, has been rendered obsolete by technology; babies are born earlier and surviving. Rather than leave the concept of viability to individual states, which is an invitation to chaos, the Court should revisit it, moving the demarcation line back to 19 weeks, half of what’s considered by modern medicine a normal 38-week pregnancy. Unless the national mood changes, the federal government shouldn’t be financing abortions. Subsidization undercuts the argument that abortion should be an individual choice and therefore an individual responsibility made and assumed by the individual woman; abortion is too incendiary for too many millions of sincere, pro-life Americans who shouldn’t have the power to impose their beliefs on a pregnant woman but who by the same token shouldn’t have to pay for her abortion. While we all pay taxes for things we don’t believe in, such as bad wars, war isn’t something that individuals declare on their own. On the other hand, if the government’s refusal to pay for abortions isn’t a denial of constitutional freedom, then the concerted effort by state and local governments to make access to abortion impossible is, as is happening in Mississippi, Arkansas, and North and South Dakota. Those states should cease and desist their schemes to target and eliminate family-planning clinics or be sued by the Justice Department.      

The only people who will find the above controversial are those who fight over abortion the hardest and whose rhetoric has long since exchanged light for heat. Those who believe a fertilized egg is fully a human being will reject any middle-ground that includes what can only be murder in their minds. But although in a totalitarian state—where mind-control is the order of the day—an intense spirituality collectively shared by many people can become a blow for freedom because it reaches deeper than the mind to where neither police nor government can go, in a democracy that exalts tolerance the political outcome of single-mindedness is anarchy or authoritarianism. This spirituality is hostile to moral nuance and determined to cast all issues in terms that don’t allow for the commonality from which pluralistic nations are built.  

Maybe this national characteristic is borne out of a frontier mentality that couldn’t help but view existence in brutal life-and-death terms. Maybe it goes back farther to the colonization of the land by religious fanatics, at once persecuted and persecuting. In any case the squeamish middle needs to seize control of this quarrel so as to decide for a nation at large something that never can be decided by the quarrelers. While the mandate of religion is to banish doubt, the mandate of politics is to accommodate it, and those of us not so presumptuous to think we understand the soul’s machinery or how or when the off-on switch gets flipped are left to make the best we can of the darkness. We’re left to strike a humane balance among those to whom we extend the benefit of the doubt when extremists defy doubt itself. Neither playing nor denying God, we navigate that moment when doubt’s benefit on behalf of the mother accedes to that of the fetus and a decision to abort is resolved at the nexus of maternal conscience, medical circumstance, and the murmurs of a Creator we can barely hear.

Comments

Place to start fresh: the medical consensus about when life has begun (14 to 20 weeks?). No more Roe's uncertainty at 4 weeks overdue but no difficulty at 12 weeks early arrival (Roe's doubtful list of theories when life may have begun were mostly theological!).

Now extrapolate (a little thought experiment): when advances in medical know-how allow fetuses to be removed from the womb temporarily (for care), to be returned to complete gestation will the courts allow one class of fetuses to exist "slave" and the other "free"?

I think it is time liberals can stop playing Edwin Meese/Robert Bork-strict constructionists on the one issue of whether the word "person" in the Constitution was originally intended to include the unborn.

Once full legal/human rights are established for certainly human prenatal babies it becomes a legislative problem to weigh how much possible human life (depending on how possible?) deserves legal or even constitutional protection.

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