Kurt Mitman | Abort Roe v. Wade
Sorry to be Kurt | Re-examining the cases for and against abortion on the 40th anniversary of Roe v. Wade
January 25, 2013, 12:07 am·
Sorry to be Kurt
One-fifth of pregnancies in the United States end in abortion.
Thirty percent of women will have an abortion by age 45.
Tuesday marked the 40th anniversary of the landmark Supreme Court decision Roe v. Wade, that legalized abortion in this country.
Should Roe stand another 40 years?
Staunch pro-choice supporters would argue that Roe should stand indefinitely and that recent state regulations — such as the 135 passed since 2011 alone — are unconstitutional. A woman has a right to privacy and sovereignty over her own body. Since it is her body, it is her sole decision to terminate the pregnancy — regardless of gestation time or viability of the fetus outside the womb.
On the flip side, the most ardent pro-lifers want Roe overturned immediately. They would argue that life begins at conception. As such, any abortion is akin to murder and should not be allowed under any circumstances.
Neither position — or variations thereof — resonates with me. They both seem to fail reductio ad absurdum attacks. In the case of pro-choice, could a mother abort a fetus up until the moment of birth? Or in the pro-life case, can we start invading a woman’s womb the moment sperm meets egg?
I looked to the Roe opinion for inspiration.
While I am no legal scholar, my takeaway from Justice Blackmun’s decision is as follows: the state has to balance two competing interests — a woman’s right to privacy and the potential for life of the fetus.
Blackmun’s opinion turns on the question of viability — the probability of survival outside the womb (with artificial support).
“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.”
Viability — think about that.
Is viable today what was viable in 1973? In 2053?
It would seem that the Supreme Court has given us a moving target for what is acceptable in terms of abortion. As we continue to make medical advances, the date of viability will continue to change to earlier and earlier in a pregnancy.
This seems morally inconsistent — life is basically defined in terms of the current state of medical technology and not on an inherent notion of life. We shouldn’t judge life in terms of technology.
But have I just argued myself into the extreme pro-life corner, where we should consider all fertilized eggs to be alive? Does that mean no contraception?
My escape comes from the natural order of things.
Human reproduction is a random affair. Up to 70 percent of pregnancies may end in miscarriage — this includes the significant number of fertilized eggs that never implant. Even after implantation, more than 30 percent of pregnancies end in miscarriage (a fact that, prima facie, is not dependent on current technology).
Considering that a woman has a right over her own body, intervening at a time when the pregnancy has a low probability of being carried to term should be morally justified.
The pill and emergency contraception should be allowed since a lack of implantation is nature’s status quo.
What about after implantation?
Medical evidence seems to suggest that after about nine weeks, the probability of miscarriage — independent of medical advances — drops significantly. This is the logical point to draw the line where human intervention is allowed.
One caveat: life should be valued above the potential for life, thus later term abortions should be allowed when the life of the mother is threatened.
While I am arguing for a significant restriction on current abortion rights, I do not support the tactics used by groups on the right to achieve this goal. I can’t imagine how difficult it must be for a woman to come to the decision to abort. To be subjected to transvaginal ultrasounds or other guilt-inducing tactics is just cruel.
As technology progresses, the current status quo will inevitably shift in the favor of the pro-life wing. How the rights of women will be balanced against viability is unclear.
By establishing a doctrine that balances the inherent rights of women with the natural order of life, we can protect women and the potential for life.
Kurt Mitman is a sixth-year doctoral student from McLean, Va. His email address is email@example.com. Follow him @SorryToBeKurt. “Sorry To Be Kurt” appears every Friday.