In the absence of scientific agreement on the viability of a fetus, the question remains whether abortion should be a matter of public morality or private morality.
by Ruwantissa Abeyratne in Montreal
“I've noticed that everyone who is for abortion has already been born.” ― Ronald Reagan
Up until recently, the decision handed down by the United States Supreme Court nearly fifty years ago in Roe v. Wade stood - that State governments did not have the power to criminalize abortions. A few weeks ago, the same court decided that, whether to criminalize abortions or not should be the purview of individual States.
Roe v. Wade was the result of an appeal lodged in 1969 and pleaded before the Supreme Court by 25-year and single woman, Norma McCorvey, who appeared before the Court as "Jane Roe", challenging abortion laws in Texas that prohibited abortions on the ground that abortions were unconstitutional, except in cases where the mother's life was in danger. Henry Wade, the district attorney for Dallas County defended the anti-abortion laws of Texas before the Supreme Court.
Ms McCorvey who was pregnant with her third child alleged that she had been raped and the applicable laws in State effectively precluded her from procuring an abortion, forcing her to give birth. But the case was rejected and she was forced to give birth.
The Supreme Court heard the appeal in 1973 where Ms. McCorvey and a 20-year-old woman from the State of Georgia argued that abortion laws in Texas and Georgia did not comport with the United States Constitution as they infringed a woman's right to privacy.
In the recent decision overruling Roe, Justice Samuel Alito is reported to have conveyed the decision on behalf of the Majority : “ Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences”.
The right to an abortion has been polarized as a political issue in the United States unlike in other countries such as Australia and the United Kingdom, where the former has taken a similar pro-choice approach but under the overarching principle that decision making was left to individual State legislatures.
The latest ruling by the Supreme Court, giving States the authority to prohibit abortions, has generated an outcry throughout the world in Europe, far away Australia and elsewhere in the world. In the United States pro-choice advocates are spread throughout States as the decision overruling Roe encouraged thirteen states which already had "trigger laws" that come into effect upon Roe v Wade being overturned. There are other States that have retained old laws which banned abortion prior to 1973 on their books and these laws could be revived and enter into force.
Amnesty International is reported to have said : “People will be forced to give birth. They’ll be forced to seek unsafe abortions. This is the outcome of a decades-long campaign to control the bodies of women, girls, and people who can become pregnant”. Former President Barack Obama is reported to have reacted against the decision saying the Supreme Court: “"relegated the most intensely personal decision someone can make to the whims of politicians and ideologues—attacking the essential freedoms of millions of Americans”.
The opposite view is reflected in former Vice President Mike Pence’s words : “By overturning Roe v. Wade, the Supreme Court of the United States has given the American people a new beginning for life and I commend the Justices in the majority for having the courage of their convictions."
The Supreme Court has overruled its own decisions several times in history, one example being the striking down of segregation laws in the 1953 decision handed down in the landmark case of Brown v. Board of Education which obviated segregation in schools. That having been said, when courts follow precedent at common law (judge made law) it gives governance and the Rule of Law a sense of predictability and infuses confidence and a sense of stability in the people. The complaint against the latest decision overruling Roe is that the Judiciary has taken the United States 50 years back, as one protester said: “50 years ago the right given to my mother has been taken away from me and from my children”.
Leaving philosophy and ethics aside, a basic look at the debate brings to bear two incontrovertible truths. On the pro-choice side of the argument, no one can deny that women have the right to decide what to do with their own bodies. On the pro-life side it is implicitly claimed that this is mere casuistry as another human life is involved which no one can tamper with or terminate. Any such interference and termination of pregnancy would be tantamount to murder. In both points of view, the debate boils down to two words – fetal viability. In other words, the ability of a fetus to survive outside the uterus.
In their article in Encyclopedia of Forensic and Legal Medicine (Second Edition), 2016 P. LefèvreF. BeauthierJ.-P. Beauthier, say “[I]t is generally accepted that a 28-week-old fetus that doesn't need resuscitation is viable. However, according to WHO, fetal viability is possible after 20 weeks of fetal life (22 weeks of amenorrhea). Anthropometrical characteristics as well as clinical parameters of fetal age estimation are of high importance”. On the other hand, G H Breborowicz in his article Limits of fetal viability and its enhancement says: “there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors”.
In another view published in The New York Times on 28 November 2021 Adam Liptak, in his article Fetal Viability, Long an Abortion Dividing Line, Faces a Supreme Court Test says: “Fetal viability is generally considered to begin at 23 or 24 weeks gestational age: by 23 weeks, 55% of infants survive preterm birth, while approximately 60–70% survive by 24 weeks”.
Admittedly, women face grave logistical problems in having to travel, at great expense, from a place which criminalizes abortion to a more liberal place which allows abortion often across states which are hundreds of miles apart, and from country to country. In many instances, abortion is only provided in private clinics where most cannot afford to procure an abortion.
There is an interesting socio-economic theory formulated by Steven D. Levitt and Stephen J. Dubner in their book Freakonomics: “So how did Roe v. Wade help trigger, a generation later, the greatest crime drop in history? As far as crime is concerned, it turns out that not all children are born equal. Not even close. Decades of studies have shown that a child born into an adverse family environment is far more likely than other children to become a criminal. And the millions of women most likely to have an abortion in the wake of Roe v. Wade – poor, unmarried, and teenage mothers for whom illegal abortions had been too expensive or too hard to get - were often models of adversity. They were the very women whose children, if born would have been much more likely than average to become criminals”.
In the United States in particular, polarizing the abortion debate has largely been the purview of conservatives and liberals where the former is pro-life, and the latter is pro-choice. Professor Michael Sandel of Harvard University opines: “Notwithstanding their claim to be neutral on the moral status of the fetus, liberals … cannot defend the right to abortion without implicitly denying that the fetus is a person”.
The bottom line in this debate is whether the issue is one for public moral discourse or individual moral discourse: whether the decision of a majority of nine Justices of the Supreme can be imposed on an entire country. In other words, whether deciding on whether abortion should be allowed or not should be based on there being a public moral legal responsibility on the State or the judiciary. In the absence of scientific agreement on the viability of a fetus, the question remains whether abortion should be a matter of public morality or private morality.
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