Morgan Marietta, University of Massachusetts Lowell
Since the Supreme Court recognized a constitutional right to abortion nearly 50 years ago, a powerful legal movement has sought to overturn the ruling, while abortion rights advocates have fought to protect it.
On December 1, 2021, the court will hear a case that many say will force the Conservative justices – who now command the majority of the court – to decide whether to overturn Roe v. Wade or will maintain the long-standing precedent.
There is a third path that judges could take. The court may focus its decision on a more neglected aspect of the Roe decision – the court’s understanding of the facts of the fetal personality.
Roe not a monolith
There are two separate decisions in Roe:
1) The Constitution protects the right to privacy, which includes the decision to abort.
2) A fetus is not a person in early pregnancy. Personality emerges at the time of viability at about 6 months, which justifies a compelling state interest at this stage.
This is why some states are prohibited under current rules from banning abortions during the first or second trimester of pregnancy, but may make the procedure illegal during the third trimester after fetal viability.
The upcoming debate in the Supreme Court is less about the existence of the right to abortion and more about the second decision of Roe v. Wade in 1973, according to which the right is limited by the emerging personality of the fetus.
The state of Mississippi redefined personality emergence at 15 weeks, not 24, and banned abortions before that point.
It all depends on the judgment of the person.
Determine the facts
When the Supreme Court examines how constitutional rights apply to the facts of our society, it is often required to rule on the nature of those overriding facts. Judges could cite experts, use their own perceptions, or a third option: authorize various democratic decisions through state legislatures, what you might call factual federalism.
In Roe, the central factual question was whether a fetus is a person – a human being who holds rights and therefore cannot be legally killed by another person.
The tribunal, ruling in 1973, recognized the following problem: “When persons trained in the respective disciplines of medicine, philosophy and theology are unable to reach consensus, the judiciary at this stage of development of human knowledge, is unable to speculate on the answer.
But the judges were nonetheless forced to do so. The court ruled that “unborn children have never been recognized by law as persons in the broad sense”. Therefore, “the word ‘person’ as used in the 14th Amendment does not include the unborn child.”
However, the court considered that the personality of a fetus develops during pregnancy. Therefore, “it is reasonable and appropriate for a state to decide that at some point some other interest, that of maternal health or that of potential human life, comes into play in a meaningful way.”
The court concluded that “with respect to the important and legitimate state interest in potential life, the ‘binding’ point is viability. “
This means that in the early stages of pregnancy, abortion cannot be prohibited, but “if the state is interested in protecting fetal life after viability, it can go so far as to ban abortion during this period. , except when it is necessary to preserve the life of the fetus. the life or health of the mother.
There is a long-standing myth that Roe’s author – Judge Harry Blackmun, who for many years had been chief counsel for the Mayo Clinic – had done a lot of medical research and came to the conclusion that viability was the emergence of personality.
Linda Greenhouse, longtime Supreme Court reporter for the New York Times, wrote Blackmun’s definitive bio, which clearly shows that was not the case. Blackmun preferred the acceleration point – when the fetus begins to move, towards the end of the first trimester – to the emergence of personality.
In a note to the judges in November 1972, he wrote that the end of the first trimester “is arbitrary, but perhaps any other point chosen, such as acceleration or viability, is just as arbitrary”.
He later wrote: “I could accept viability if it could order a court”, but “would like to leave states free to draw their own medical conclusions regarding the period after three months and until viability”. In Greenhouse’s account, it was Justices William Brennan and Thurgood Marshall who advocated viability as the court standard, to which Blackmun ultimately agreed.
The options of the court
As a keen observer of the court, I believe judges have three options rather than two:
• Fully maintain Roe, solidifying abortion rights.
• Overthrow Roe entirely, ending all abortion rights.
• Do you focus only on the specific factual issue of Mississippi law – when does the personality appear? – allow individual states to determine this line themselves.
I believe this latter approach may be the likely outcome for several reasons. The Roberts Court tends to move gradually rather than in bold strokes. The social fact ruling alone confirms Mississippi law but does not override the fundamental right recognized in Roe. Finally, this approach allows judges to reinforce a constitutional principle favored by conservatives – federalism, which is the freedom of states to exercise their own judgment on matters that the Constitution does not assign to the national government.
The court will decide whether the judges will assert a national standard for this contested social fact, or whether individual states can decide their own definition, allowing diversity within personality boundaries and the regulation of abortion, across the country.
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Morgan Marietta, associate professor of political science, University of Massachusetts Lowell
This article is republished from The Conversation under a Creative Commons license. Read the original article.