By Morgan Marietta
Since the Supreme Court recognized a constitutional right to abortion almost 50 years ago, a powerful legal movement has sought to overturn the ruling, while abortion rights advocates have fought to protect it.
On Dec. 1, 2021, the court will hear a case many believe will force the conservative justices — who now command a majority of the court — to decide if they will strike down Roe v. Wade or uphold the long-standing precedent.
There is a third path the justices could take. The court may focus its ruling on a more neglected aspect of the ruling in Roe — the court’s understanding of the facts of fetal personhood.
Roe not a monolith
There are two separate rulings in Roe:
1) The Constitution protects a right to privacy, which encompasses the abortion decision.
2) A fetus is not a person in the early stages of pregnancy. Personhood emerges around the time of viability at approximately 6 months, which justifies a compelling state interest at that point.
This is why individual states are forbidden under current rulings from outlawing abortions in the first or second trimester of pregnancy, but can make the procedure illegal during the third trimester after the viability of the fetus.
The upcoming debate at the Supreme Court is less about the existence of the abortion right and more about the second ruling in Roe v. Wade in 1973 — that the right is limited by the emerging personhood of a fetus.
The State of Mississippi has redefined the emergence of personhood to be at 15 weeks, not 24, and outlawed abortions prior to this point.
Everything hinges on the judgment of personhood.
Determining the facts
When the Supreme Court considers how constitutional rights apply to the facts of our society, they are often forced to rule on what those broad prevailing facts are. The justices could cite experts, employ their own perceptions or a third option: allow diverse democratic decisions through state legislatures, what could be called the federalism of facts.
In Roe, the core factual question was whether a fetus is a person—a human who holds rights and hence cannot be killed lawfully by another person.
The court, ruling in 1973, recognized the problem that, “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
But the justices were nonetheless compelled to do so. The court ruled that “the unborn have never been recognized in the law as persons in the whole sense.” Therefore, “the word ‘person,’ as used in the 14th Amendment, does not include the unborn.”
However, the court saw the personhood of a fetus as developing during the course of a pregnancy. Therefore, “it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved.”
The court concluded that “with respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability.”
This means that in the early stages of pregnancy, abortion cannot be outlawed, but “if the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
Why viability?
There is a long-standing myth that the author of Roe – Justice Harry Blackmun, who had served for many years as chief counsel for the Mayo Clinic – had done copious medical research and come to the conclusion of viability as the emergence of personhood.
Linda Greenhouse, a longtime Supreme Court reporter for The New York Times, wrote the definitive biography of Blackmun, which clearly demonstrates that this was not the case. Blackmun preferred the point of quickening – when the fetus first begins to move, at around the end of the first trimester – as the emergence of personhood.
In a memo to the justices in November 1972, he wrote that the end of the first trimester “is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”
He later wrote, “I could go along with viability if it could command a court,” but would “like to leave the states free to draw their own medical conclusions with respect to the period after three months and until viability.” In Greenhouse’s telling, it was Justices William Brennan and Thurgood Marshall who urged viability as the court’s standard, to which Blackmun eventually agreed.
The court’s options
As a close observer of the court, I believe the justices have three options rather than two:
• Maintain Roe fully, solidifying abortion rights.
• Overturn Roe entirely, ending all abortion rights.
• Focus only on the specific factual question of the Mississippi law – when does personhood emerge? – allowing individual states to determine that line for themselves.
I believe this last approach may be the likely result for several reasons. The Roberts Court tends to move incrementally rather than in bold strokes. The ruling on social fact alone upholds the Mississippi law but does not strike down the core right recognized in Roe. Finally, this approach allows the justices to reinforce a constitutional principle favored by conservatives – federalism, which is the freedom of states to exercise their own judgment on questions the Constitution does not assign to the national government.
The court will decide whether the justices will affirm a national standard for this disputed social fact, or whether individual states may decide their own definition, allowing diversity in the boundaries of personhood, and the regulation of abortion, throughout the country.
Morgan Marietta is Associate Professor of Political Science at the University of Massachusetts Lowell.
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Dennis says
Double standard here. A unborn is not a person, but I read all the time that people are charged with killing an unborn in a punch to the stomach or other acts against the woman. Why are they being charged when the “blob” she has inside her is not a person according to the Supreme Court? All aborting is killing another human being in my opinion. Ladies had their choice early on with a condom, or morning after pill. Killing the baby’s just prevents an inconvenience in life for them.
Deborah Coffey says
Ladies don’t wear condoms. Rape victims don’t wear condoms. Incest victims don’t wear condoms. When you get pregnant, Dennis, get back to us.
Maxi says
Let’s take this one line at a time. An act such as a punch to the stomach that cause someone to miscarry a fetus was done against the persons wishes. They did not ask to be forced to miscarry or abort the fetus. The choice was taken away from them. This is why it’s a crime.
Ladies do not always have a choice to make their partners use a condom, rape, stealthing, breakage, come to mind. The morning after pill is a great emergency contraceptive but the person must know they are in need of it within 3 days of unprotected sex and have access to a pharmacy where they can purchase it.
All of this puts the onus on the women. Where is the man’s responsibility in this? Why not just require all men to get a vasectomy and then when a woman wants to get pregnant by a certain man she can go with him to a clinic and have the vasectomy reversed.
A man can impregnate an unlimited number of women but a women can only get pregnant once every 40 weeks (9-10 months).
Men having irresponsible ejaculations is what causes unwanted pregnancies and abortions.
DaleL says
The woman is clearly a person and a fetus is clearly part of her. Punching a pregnant woman clearly does her harm. Exodus 21:22-23 covers this quite well. If a woman is punched and not seriously injured, but suffers the loss of her unborn fetus, the perpetrator is fined. However, if the woman is killed, it is murder.
Concerned Citizen says
Not all women have the choice early on. Unfortunately we do have rape and incest occurring more often than you may realize. Some cases you never hear of. Some victims refuse to report the incident due to fear of some sort. Would you force your 13 year old daughter to carry to term and put her life in jeopardy if she became pregnant as a result of rape or incest by one of your relatives? I am pro choice. Each person’s situation is unique. I would not have an abortion under normal circumstances but rape or incest is a different situation and I have no clue what I would do if placed in that position. We must respect a woman’s body and leave the choice up to each individual. Not to do so goes back to the days of slavery and inhumane punishment for something that resulted through no fault of the victim. We must not go back to the stone age when women were considered property and had no rights of their own.
Shelia says
Correct, Dennis. It is double counts of murder when the woman is pregnant. Flagler Live is so….
Now, to Flagler Live:
1) The Constitution protects a right to privacy, which encompasses the abortion decision.
—I do not believe the thought of abortion entered the minds of the founders when they spoke of privacy.
2) A fetus is not a person in the early stages of pregnancy. Personhood emerges around the time of viability at approximately 6 months, which justifies a compelling state interest at that point.
—A woman’s body is comprised of living cells. The clump of cells that are the beginning of a new human being are living as well. Six months???? My aunt was born at home, just 3 months into the pregnancy, She came out at 2.3lbs. Fully human, legs, arms, fingers, toes, eyes, etc. She lives today at 70. That is 3 months shy of your 6-month propaganda agenda. The fetal heartbeat at 6-7 weeks…that human being is alive!
If a court wants to make abortion legal, they can do it. If a woman decides to take that action, it is currently legal, and she can do it. However, do not insult people’s intelligence, deny the basic science, and pretend abortion is not the act of murdering a human being. Capitol punishment, and abortion, are both legalized murder. Do not lie and say otherwise to justify some people’s desire to murder others.
Stephen Smith says
When Government agrees to take over the care, feeding, and education of all unwanted children and the health of the mother through delivery, then and only then should they make decisions for a woman as to terminating a pregnancy. Unfortunately, our government and society only care that a child is born. They have no concern for how that child will be cared for after birth. Government also needs to end its reluctance to support sex education in schools, provide easy access to birth control, and most importantly pass the equal rights amendment and treat women as equals.
Timothy Patrick Welch says
The child’s family has authority and a responsibility to care for their own. The government should provide a safe country, state and city that supports the families efforts. Parents should be free to care for and raise this precious wonder without interference of the government.
Deborah Coffey says
The third option, allowing each state to decide when “personhood emerges,” would be an absolute catastrophe giving American women UNEQUAL rights depending on where they live. We see what is happening with voting rights, state by state, and just how powerful the Republican Party has pushed forward its minoritarian rule.