With the Supreme Court’s grant of cert in Dobbs v. Jackson Women’s Health, speculation has run rampant that the Court is about to reverse or significantly undermine its decisions in Roe and Casey. Whether this will happen, and should it happen will place the Court in the very institutional jeopardy that Chief Justice Roberts has gone to enormous lengths to avoid, remains to be seen.
I’m disinclined to join in the speculation, not because it isn’t possible (perhaps even likely) that the Court will do damage to the right to an abortion, but because there is nothing to be done to change it if it’s in the offing, and because there will eventually be a decision that will put the speculation to rest. I will wait and see. Why waste good outrage before you have to?
But at Dorf on Law, Cornell lawprof Sherry Colb raises an interesting part of the problem. There are two primary problems with the Supreme Court’s Roe rationale. The first, obviously, is that they created a right out of nothing. Nowhere does the Constitution provide for a right to an abortion. Nowhere does it provide for stepping stone rights that lead to the creation of a right to an abortion.
Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.
Regardless of how sound the policy of a woman’s right to choose, the stretch from an implicit right of privacy to abortion required some serious gymnastics by Justice Harry Blackmun. But to stick the landing, he similarly manufactured the trimester viability test, which basically ended the right to an abortion at the third trimester because, his pals at the Mayo Clinic informed him, that was when the fetus was “viable.” That’s where Colb’s “defense” of viability begins.
Viability, however, would appear to have little to recommend it as a border between prohibiting and permitting abortion. What changes when a fetus becomes viable outside the womb? What changes is more or less that the fetus’s lungs have developed enough to take in oxygen without the placenta to absorb it from the mother’s bloodstream and pass it along through the umbilical cord. Is the ability to breathe outside the womb a morally relevant characteristic? How could it be? The ability to breathe is essential for life, but it is not the sort of thing to which we attach moral status, any more than the ability to see or to walk or to speak are such abilities. Such capacities are morally neutral, at best. At worst, a fixation upon them as a prerequisite for rights appears to embrace a problematic ableism. Are people who cannot breathe without assistance somehow “less than” those who can?
Rather than see viability as a distinction between an extant life and a inchoate life, Colb characterizes it as abelist and posits whether functioning lungs present a “moral” distinction?
In addition to its irrelevance (and possible perversity) as a criterion for a fetus’s moral standing, viability also seems a bit illogical. Indeed, one might say that waiting until viability to protect the right to abortion is exactly backward. Up until viability, the fetus needs the mother’s body in order to live, yet we give the mother the right to remove the fetus from her body during that period and thus the right to kill it. But then, at the moment when the fetus can survive without having to live inside its mother’s body, it is then that, by permitting an abortion ban, we say that it is okay to require the mother to keep the fetus inside her body for another 15 weeks or so. She can take the fetus out when it needs to be in but once it can survive an exit, it must stay in. What kind of a rule is that? It is like providing that the warden of a prison, in case of a fire, must keep all prisoners locked in the burning building. But then, once the fire is extinguished, the warden must liberate the prisoners.
This reasoning might work better if the law required the delivery of a viable fetus in the third trimester rather than “the right to kill it,” even if viability isn’t exactly a guarantee of survival of a premature baby. But the point here isn’t so much whether this is a sound stand-alone argument, but that Justice Blackmun’s trimester viability approach made any sense in the first place. Colb clearly thinks it did not, but she isn’t giving up on viability just yet.
Nonetheless, I actually do think viability has something going for it, though not anything that the Court has identified. The moment of viability is the point at which terminating a pregnancy–which a woman should always be in a position to do–and killing the fetus, no longer have to go together. Prior to viability, if a woman exercises her right to stop being in a state of pregnancy, to remove an unwanted human parasite from inside her body (a parasite because it extracts precious resources while depleting its host’s store), its removal will necessarily end the life of the embryo or fetus. Being pre-viable means being unable to survive outside of a womb, connected to a placenta by an umbilical cord.
While the word “parasite” carries very negative connotations, Colb uses it in its most technical sense, and it is an apt description of a fetus surviving off the resources of its “host.”
If we think of abortion as self-defense, and self-defense as requiring no less restrictive alternative, it is true, prior to viability, that there is no way for the pregnant woman to defend herself against an unwanted pregnancy without also ending her embryo’s or fetus’s life. Once viability has arrived, however, it becomes possible to sever these two endings. The woman who wants to stop being pregnant can, after viability, fulfill her wish without killing the fetus. For that reason, it may be coherent to say that once viability arrives, a woman no longer has the right to kill her fetus, a right that she had for the whole pre-viability period only because defending herself and killing were inextricably linked. Though this account of Roe v. Wade is admittedly a bit different from the doctrinal shape of the existing (for now) right to abortion, it makes sense and offers a rationale for prohibiting abortion–in the sense of “feticide”–after viability. We might even say that the abortion right was never really a right to kill to begin with; it was a right of a person to stop housing another living being inside her body.
In other words, the concern about viability isn’t for the sake of the fetus, but in defense of the “host,” the mother of the unwanted fetus. What this reimagination of Blackmun’s justification for the trimester distinctions would end up doing isn’t exactly clear, but it offers more insight into the problems of trying to argue, both in legal and logical terms, the doctrinal propriety of Roe v. Wade. The fear that the Supreme Court will reverse Roe and Casey is a fear of outcomes, but the rationale behind the decisions remains problematic whether one supports or opposes the decisions.
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“While the word “parasite” carries very negative connotations, Golb uses it in its most technical sense”
Except that in it’s most technical sense, a parasite is “an organism that lives in or on an organism of another species (its host) and benefits by deriving nutrients at the other’s expense.”
The inter-species nature of parasitism is what differentiates it. Gab uses it purely as a rhetorical tool to instil disgust. That’s fine, but it can’t really be defended on “technical” grounds.
Fair point.
Besides making an unfounded assumption about the motives of Prof. Colb, Loki’s statement about the definition of parasitism isn’t completely true. There are parasitic variations recognized by biologists that include interactions within the same species, such as Adelphoparasitism and sexual parasitism in some fish species. So whatever her motives were, Prof. Colb is describing the relationship accurately, in a technical sense.
And then, of course there are symbiotic relationships, where both parties contribute to the joined unit, perhaps to the ultimate demise of one of them, perhaps not.
Maybe Justice Blackmun was also thinking about the various birth control methods that have been used, and whether his formulation might imperil them, because some of them involve the destruction of the fertilized egg, before it becomes viable.
Stunning that Colb seeks to take the “moral” high ground here, as if abortion is a matter of morality rather than practicality or necessity. I, too, am pro choice, but this is just nuts.
Is there a moral distinction about having functioning lungs? Put another way, is there a moral distinction about terminating a life that could exist independently? Seems like the answer would “absolutely.” But then, I don’t do morality. Just law.
Abortion IS a matter of morality. It is immoral to force a woman to carry to term a pregnancy she does not want. Philosopher Judith Jarvis Thompson long ago developed an analogy to show this: A uniquely talented violinist is dying. The only way to save him is for him to be hooked up by tubes to another person for nine months, so that person’s blood, kidneys, or whatever can keep him going until his body clears the disease. Nobody volunteers, so the violinist’s friends kidnap someone and hook that person up. Does the person have a moral right to cut the tubes? Of course. Abortion is different only insofar as we might not consider a fetus, at least before a certain point, to be a person (unlike the violinist, who is indubitably a person) — but that makes the right to an abortion even more of a moral imperative. (And if the response is that the woman did volunteer when she had sex, that’s both stretching the notion of consent, because she didn’t consent to getting pregnant, and misogynistic — men are allowed to have sex without consequences, so women should be also.)
That is a really bad analogy that only a true believer would buy. There is no similarity between a woman who has sex and gets pregnant and a random kidnapped person. Biology isn’t misogynistic. It’s biology. You can’t shame it into non-existence because it’s unfair that women have a uterus and men don’t.
And capitalizing “IS” does not make the claim of morality any more persuasive. Remember, I am pro-choice, but that doesn’t make me delusional about it.
Whew. I was about to call the Analogy Police to report a murder.
*It is immoral to force a woman to carry to term a pregnancy she does not want.*
My god, how cold does someone have to be to see no moral quandary in the termination of a fetus. It’s one thing to argue that a woman should have the right to choose, and that abortion is a necessary if terribly sad consequence, but you dismiss any morality as to the fetus at all. And you think that’s moral? You’re a ghoul.
The irony is that both sides of this debate claim the moral high ground as a matter of the righteousness of their belief. That’s the nature of morality.
It is true that Justice Blackmun’s “fetal viability” test is highly dubious as a matter of medical science. But I suspect he knew that. He was no fool; nor were the justices who signed on fools. The SCOTUS was facing a highly divisive issue and decided that, due to the court’s (at the time) strong civil libertarian bent, it would protect “the right to choose,” but within limits that might lower the screams of the “right to life” crowd. So it picked an arbitrary point. The Court followed the old adage that it is sometimes better that a divisive issue be decided, even if it might not be decided precisely correctly. The Roe decision was just an example of the compromises that a civilized society makes in order to avoid civil war. (Of course, in this case, it’s not clear that civil war has been entirely avoided. The controversy has refused to die.)
I compare Roe (1973) with Obergefell, which has barely caused a serious ripple because society was ready for gay marriage, while the war over abortion continues unabated. I wonder what could have been done to make abortion less divisive so we wouldn’t, nearly 50 years later, still be fighting about it. Maybe there’s no answer, but Roe clearly didn’t put the issue to bed.
Perhaps the point of fetal viability is to draw a line between abortion and infanticide. Thought experiment: four women are pregnant, one day before the fetal viability limit. One goes into early labor and delivers a preemie, who survives and is immediately given up for adoption. The second is the same as the first, except the preemie dies within a day after birth. The third goes into early labor, has a preemie who is doing fine, until the attending physician breaks its neck, killing it. The fourth has a legal abortion.
What, if anything, is the moral difference among the four cases? I suggest the viability criteria is to help draw a clear line between (3) and (4), even though we know viability is a fuzzy line in the real world, as (1) and (2) show. Is it satisfying? NFW. Is it as good as we can realistically get at this time? Maybe.
I’m atheist, but the words of that old Virginia slaveholder come to mind:
As Harvey notes, it was an effort to create a rule that would be publicly palatable, even if it had no legal and little medical justification. Colb’s argument is that theoretical viability outside the womb is neither a rational nor moral justification to shift focus from mother to fetus/infant. As long as the fetus remains within the mother, the parasite and its host, the focus should remain exclusively on the mother.
As Colb is a lawprof, and assuming “lawprof” is a prawf and not a random Teen Vogue reader, it raises the disturbing expectation of those entrusted to educate lawyers of the future that the Supreme Court’s ruling should be ecclesiastical rather than legal. It’s “moral”?
We have nine justice, not high priests. The invocation of the Handmaid’s Tale by the pro-abortion side may be the most tone-deaf view possible. That was expressly what a theocracy produced, and yet here they are, demanding religious rule rather than law and reason. Like you, I am pro-choice, but for entirely pragmatic reasons. Spare me the appeals to morality and give me a logical legal doctrine.
Sarge,
Passing by, I read your comment, I entirely agree.
As the late, and, now, not so great RBG suggested, one might be able to craft a viable (snicker) legal doctrine from the 5th and 14th Amendments, but poor Harry’s approach floats like a helium balloon untethered to the earth. Therefore it is easy to pop.
After getting out of the abortion business (recusal) with disgust as a result of the way the Court handled the virtually identical Carhart decisions I wrote, let me suggest that the world would not fall in if Roe was killed. But either way, it should not be killed or kept alive because of any moral concerns the Justices hold.
All the best.
RGK
Law requires thinking. Thinking is hard and can give someone headaches. Religion requires believing and believing is easy. Why do you hate legal academics and want them to get headaches?
David,
“Why do I hate legal academics and want them to get headaches?” As I approach my 75th birthday, with all the frailties that implies, the answer to your question is this: ‘Cause it is one of the few remaining sports available to me!
A little like shooting fish in a barrel. Easy, fun and satisfying.
All the best.
RGK
It seems you’ve never attempted to follow a religion, David. The amount of wresting I’ve done with scripture has given me plenty of headaches.
But being against abortion isn’t necessarily something that comes from religion (just as you don’t have to be religious to care about the poor, believe killing is wrong, etc…things many religions support). I know atheists who are against abortion. And I believe I would have my view that human life begins before birth (birth is such an illogical place to believe it begins) and therefor should have some protection before then. My religion didn’t tell me that (sure there’s a verse about “being knit” in the womb…but my own baby kicking back in response to my touch could have told me the same thing).