On Wednesday, December 1, 2001, SCOTUS heard arguments pro/con the latest effort to change/overturn Roe v. Wade. Mississippi’s Solicitor General presented his case, which sought a 15-week limit rather than the 24-week limit past which a woman can’t legally abort.
The back-and-forth was interesting. A major part of the arguments related to the principle of stare decisis, or honoring precedent. This doctrine keeps the law evolutionary rather than revolutionary, so that absent compelling reasons a court doesn’t just dump whatever went before but must try to uphold precedent or at least reason in line with it, in this case fetal viability. No one can find a Constitutional principle upholding abortion so the next-best thing is to say it’s okay to abort before the fetus can survive outside the womb without heroic medical intervention. That test constitutes viability. Up to now that limit has been the 24 weeks.
The other major goal of the case was to bring the abortion decision down to state level and get away from SCOTUS altogether. I favor this course of action since it is the only way most people will get what they want. There is no middle ground since the opposed sides disagree on the most fundamental points. Pro-lifers hold that the fetus is a human life from the moment of conception; pro-choicers say the whole decision to abort or not is the prospective mother’s to make and no one has any business interfering because it’s her sovereign body.
One way or the other, a lot of people are going to be upset with the decision.
This is perhaps the most political issue to go before the Court since Brown v. Board of Ed, and SCOTUS in the past has punted rather than decide definitively. In this case you couldn’t tell from their questions which justice was inclining which direction; it often seemed that the justices asked questions and pursued points at odds with what we thought their personal attitudes were toward abortion. Even Justice Thomas, usually silent, had several comments and questions.
As a Christian I favor no abortion but find myself in the position of the Founders on slavery – do what we can for now and try to get what we really want later on. I personally have long held that anything beyond the heartbeat + brainwave test is too late to abort. If I understand the science right, a fetus has both brainwave and heartbeat at about the third month. That should be the decision point, on the reasoning that once brainwaves are present it’s no longer a “fetus” but a “baby,” hence a person, hence aborting it would be murder.
How to square this thinking with my Christian beliefs? This way. God himself tolerated slavery for thousands of years, knowing that to get rid of it in human affairs the grounds would have to be carefully prepared. Jesus came first, then the need for a country rooted in Judeo-Christian ethics. With a population so oriented, arguments appealing to ethics could have a serious chance of catching on. Any earlier than that and the anti-slavery argument would only get perplexed stares from people who had always known slavery and really couldn’t imagine the world without it.
At any rate, SCOTUS decisions aren’t announced until June so we get to argue the whole thing all over again.
By Jack Rail
Jack Rail is a retired Army officer who writes mostly when something gets his goat.