Right to Abort versus the Right to Life

Since the Supreme Court was established in 1789, it has reversed its own constitutional precedents only 145 times.

By Neera Kuckreja Sohoni

The U.S. Supreme Court heard arguments for and against a Mississippi law on December 1, which if implemented would ban abortions after 15 weeks of pregnancy, well before the yardstick of fetal viability as previously defined in Court judgments.

Until now, all the court’s abortion decisions have upheld Roe v. Wade’s central premise that women have a constitutional right to an abortion, deriving from the constitutionally guaranteed right to privacy; and the right applies to the first two trimesters of pregnancy when a fetus is unable to survive outside the womb, roughly 24 weeks.

Mississippi and about 12 other states have taken pains to challenge or neutralize the validity of an archaic regulatory Roe regime that the states feel needs to change with emerging advancements in medical science and revised perceptions of fetal viability.

Mississippi has asked the Court to reverse Roe v. Wade and to restore to states the flexibility to tackle abortion in the manner best favored by the state’s constituents. It is equally clear that between the woman’s right to choose to extinguish a fetus, and the right to life of her spawn while the courts historically have favored the pregnant woman, giving her overriding authority (in the first two trimesters) to decide. They have also made that right “conditional” upon the unborn infant’s ability to survive outside and independently of the womb. This conditionality has opened the door to current court challenges and appeals asking the courts to revisit the issue of what constitutes viability and when.

The advancement in medical science has made it justifiable for the state to take appropriate action in defense of the unborn and its right to life at earlier fetal stages than before. The Mississippi law, in fact, allows abortions at other stages in medical emergencies or cases of severe fetal abnormality.

Typifying the rush to judgment, the liberal warned that the right to abortion was under fire and threatened with extinction by a conservative-leaning Court. Catchy headlines presented the new six-justice conservative supermajority as falling into two camps, one comprised of Justices Thomas, Alito, and Gorsuch seemingly ready to reverse Roe, and the other camp consisting of the remaining three conservative justices, hesitant to go thus far.

To pop abortion pills, as many young enthusiasts of bodily autonomy were seen doing outside the Supreme Court building while the court was in session, is to muddy the sanctity both of the court and of the protest. Sending death threats to litigators, judges, and their support staff is worse as it relegates our otherwise functioning judicial system to an ugly place.

Worse, to tarnish the court’s hearings and impending ruling on abortion as partisan, reactionary, and a product of “Court-packing by Trump” is to give up on our distinguished “highest” minds that inhabit the court and their ability to adopt a secular, insightful, and independent approach to judging. For Democrats, perceptibly the “enlightened party of science”, is now condemning a law and its framers for following the dictates of science that flies in the face both of logic and consistency.

In such a viciously divisive and emotionally charged context, credit goes to Chief Justice Roberts for focusing on the key issue of viability. It was scientific aptitude and not a party affiliation-based question, when he asked, “Why would 15 weeks be an inappropriate line (to measure viability)?

It is hardly his fault if the response to his question was disappointing. A mere warning that if the court were to move the viability line substantially backward, “it may need to reconsider the rules around regulations because if it’s cutting the time period to obtain an abortion roughly in half, then those barriers are going to be much more important”, lacked substance. Moreover, the medical technology, mobility, and access to medical amenities today are much better, faster, and more ambulatory and accessible than when the Roe v. Wade ruling appeared.

On the issue of viability, the clincher came from Justice Alito when he asked, “the fetus has an interest in having a life, and that doesn’t change does it?” Because viability is revised to commence in earlier weeks of pregnancy, does not negate or weaken the fetus’ intrinsic right to life.

Justice Kavanaugh’s intervention pointed out the elephant in the room when he noted that the Constitution does not directly address abortion and that the issue should instead be left to the democratic process. He was not seeking to turn our secular Constitution Christian but was merely debating the constitutionality of the ‘claimed’ right to abortion.

Pleading for the woman’s right to abortion to continue, the Solicitor General representing the Biden administration, eschewed intrinsic merit and chose to rely on the customary practice of leaving the choice for the fetus to live or die exclusively to the woman. Her referencing “their lives” and “their beliefs” and “their conscience” in advocating for women’s right to abortion turned out to be precisely the problem – as it leaves no room to accept or validate the right to survival of the unborn.

Brett M. Kavanaugh captured the essence of the ‘judicial’ dilemma regarding abortion, and the challenge for courts to mediate two clashing interests — the woman’s right to terminate a pregnancy and the interest of fetal life. “The problem is you can’t accommodate both interests. You have to pick,” he contended. “Why should this court be the arbiter rather than Congress, state legislatures, state supreme courts, and the people being able to resolve this?”

The court, he suggested instead, should remain “scrupulously neutral on the question of abortion — neither pro-choice nor pro-life”.

While all three liberal judges – Breyer, Sotomayor, and Kagan – emphasized the importance of stare decisis, the principle that courts should adhere to prior precedent except under limited and extraordinary conditions, they went overboard to suggest that “overruling Roe … would undermine the court’s legitimacy by creating the sense that the meaning of the Constitution hinges on the court’s membership at any particular moment in time”.

“Will this institution survive the stench that this creates in the public perception – that the Constitution and its reading are just political acts?” Sotomayor condescendingly asked and concluded. “I don’t see how it is possible.”

One is within one’s right to ask whether her comments do her and her colleagues, justice. Moreover, her reflexive response conveyed her own brashness than her sagacity or medical expertise – in turn tarnishing her own image and the court’s majesty.

Whether the Courts’ Nine ultimately supports or overturn the Mississippi law and alongside Roe v Wade, their comments during the recent proceedings will long shape/sully the discourse around abortion. Sadly, the performance of some of them will forever remind us of how the Wisest of Women and Men in Christendom can still have feet and brain cells of clay.

Images courtesy of (Photo: CUL Review) and (Photo: The Rubicon)

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