Time For The Hard Questions

Multiple states are passing new abortion laws in an attempt to pressure the Supreme Court to overturn its 1973 Roe v. Wade ruling and they are also passing other “trigger laws” which cannot legally be enacted now but are scheduled to take effect 30 days after that ruling is overturned.  Texas never even repealed its abortion law that Roe v. Wade was about, it is still on the books and will take effect immediately upon reversal of the Supreme Court decision. There are several others states that are in a similar situation.

Below we will attempt to engage in some critical thinking with some thought exercise discussion prompts.  In order to help with this, we will need to make a few important stipulations.  First, we will refer to the two major stances as Pro-Choice and Anti-Choice, because those are the true essential stances.  Those who adhere to a Pro-Choice stance are not Anti-Life and are not Pro-Abortion, with few exceptions they would advocate for a choice of carrying to term but would consider abortion a viable option as one of those choices based on a variety of factors. The extent of those factors is open to debate within this group.  Those who adhere to an Anti-Choice stance do so often by professing it is a Pro-Life stance, some are open to exemptions from their ban on abortions for rape, incest, developmental disorders, and/or health concerns for the mother or unborn fetus, many others are not open to any exemptions at all.  I urge you as we focus on the legal and scientific aspects of this, as well as the religious doctrine and moral arguments, to try to leave your emotional triggers and logical fallacy arguments at the door.

The Constitutional Issues

The primary holding of the Supreme Court’s ruling was:

“A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception.”

https://supreme.justia.com/cases/federal/us/410/113/”

That due process clause is section 1 of the Constitution’s 14th Amendment, which states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

https://www.law.cornell.edu/constitution/amendmentxiv

Based upon this, we can see that the Constitutional rights of personhood begin at birth on American soil or naturalization as an American citizen for an immigrant.

Many of these Anti-Choice laws being created and passed are extending the rights of personhood to the fetus prior to birth; in many cases even before the actual brain or heart of the fetus has developed into a functional form.

For this to be legal, it would require another Constitutional amendment moving the point of personhood protections to prior to birth. 

This raises some questions that must be clarified under the law.

1. At what point do the rights of the fetus and its health concerns overrule the rights of the pregnant woman?
2. Would the fetus of all pregnant women have to be counted as a person during census taking and all legal decisions based upon census totals once personhood rights are established?
3. Do parents get a child tax credit/refund if filing prior to birth once personhood rights are established?
4. Is the fetus counted towards family SNaP nutrition benefits, housing assistance, and other social safety net programs once personhood rights are established?

Non-Constitutional Legalities

Pennsylvania just advanced multiple bills in their legislature that will, if passed, require women who miscarry to file a fetal death certificate with the state authorities and open those same women up to imprisonment for a miscarriage.

Alabama Gov. Kay Ivey signed a controversial bill that bans nearly all abortions into law Wednesday evening.

It’s considered the most restrictive abortion law in the United States. The law makes it a crime for doctors to perform abortions at any stage of a pregnancy, unless a woman’s life is threatened or there is a lethal fetal anomaly.

Under the new law, doctors in the state face felony jail time up to 99 years if convicted. But a woman would not be held criminally liable for having an abortion.

Texas Governor Abbott took a slightly different approach, signing this week another of the nation’s strictest abortion measures, banning procedures as early as six weeks into a pregnancy.

Instead of having the government enforce the law, the bill turns the reins over to private citizens — who are newly empowered as unofficial agents of the state — to sue abortion providers or anyone who helps someone get an abortion after a fetal heartbeat has been detected. The person bringing the suit would not have to be connected to someone who had an abortion or to a provider to sue.  It does not include any exemption for rape, incest, or health concerns.  

Under this law, the pregnant woman seeking an abortion cannot be punished, but any “concerned citizen” can sue any family or doctor that helps someone receive one.  Any unfriendly vindictive neighbor or coworker, any religious zealot, can file such a lawsuit.  Even a rapist or sexual abuser within a family could legitimately bring such a suit.

The entire purpose of all of these laws is to further punish women who have already been traumatized by abuse or miscarriage, for their “failure” as an incubator.

This is going to lead to a huge increase in suicides among pregnant women and girls who see no other way out of an already impossible situation due to familial, health, and economic concerns after finding out they are pregnant.

The Science Issues

Most women do not know they are pregnant until they have missed at least one of their menstrual cycles, for those who already experience an irregular cycle it may even be more.  So, these plans pushing bans on abortion to as early as six weeks are pushing the window for a decision prior to the point where many women will even know they are pregnant and far before they will know about pregnancy related health conditions or fetal development problems.

The argument for the six week ban is based on the point at which what is called a fetal heartbeat can be heard on a fetal heart monitor.  But this isn’t an accurate assessment of development.  At this stage what can be heard is a throbbing pulsation of blood through fetal tissue that has not yet developed its own heart and is far from developing its own brain, let alone human cognition.

British researchers analyzed scans of the hearts of healthy fetuses in the womb and found that the heart has four clearly defined chambers in the eighth week of pregnancy, but does not have fully organized muscle tissue until the 20th week.

This is much later than expected, according to the study published Feb. 20 in the Journal of the Royal Society Interface Focus.

Previous studies of early heart development in humans have been largely based on other mammals — such as mice or pigs — as well as adult hearts and samples from dead people.

The data being collected by the University of Leeds-led team is being used to create a computerized simulation of fetal heart development. This will help improve understanding about normal heart development in the womb, and could lead to new ways to detect and treat some fetal heart problems early in pregnancy, according to the researchers.

Human fetuses have a regular heartbeat beginning at about 22 days of pregnancy, which is one reason why the researchers were surprised to find that there is little organization of human heart cells until 20 weeks of pregnancy.

“Fetal hearts in other mammals such as pigs, which we have been using as models, show such an organization even early in gestation, with a smooth change in cell orientation going through the heart wall. But what we actually found is that such organization was not detectable in the human fetus before 20 weeks.” 

https://www.medicinenet.com/script/main/art.asp?articlekey=167987

The Supreme Court decision mentioned above based their determination for the cutoff for legal abortions on the medical viability of the fetus, or its possibility of survival.  Even at that point, and with the medical advancements in the nearly five decades since, survival is far less likely prior to 24 weeks, the majority of those delivered extremely premature do not survive, and the majority of those that do survive have long term — often lifelong — developmental issues requiring extensive and expensive care. 

Medical advances mean that we are getting better at treating preterm babies but the chances of survival still depend on gestational age (week of pregnancy) at time of birth.

• Less than 22 weeks is close to zero chance of survival
• 22 weeks is around 10%
• 24 weeks is around 60%
• 27 weeks is around 89%
• 31 weeks is around 95%
• 34 weeks is equivalent to a baby born at full term.

The Religious Issues

The United States is supposed to be a nation fundamentally based upon the Freedom of Religion. The ideal being that you are free to practice whatever religious beliefs you hold as long as the practice of them brings no harm to people with other beliefs; and they are too. This means you can worship the Aztec gods if you choose to, but you cannot go take a prisoner and offer them up in a ritual sacrifice. It also means you can’t stone someone in public because they have committed what your religion considers a sin.

Those that are atheist or agnostic do not hold the same religious objections as those who are and their decision either way has no bearing upon others at all.

But the religious concept of the beginning of life varies greatly from religion to religion. For example, the Jewish believe that life begins with the first breath. This is why Israel has legalized abortion for years within their nation’s universal health care. Since it is funded by the government, the argument could be made that American military fund assistance to Israel helps subsidize it They were even exempted from Trump’s presidential ban on foreign aid to countries that allow such procedures within their government’s health care programs.

What happens under these laws if a Jewish doctor performs an abortion for a pregnant Jewish woman or girl and then claims the religious exemptions that the Supreme Court has recently been upholding to avoid punishment?

The Catholic church has long had a stance against abortion as well as against all forms of birth control that might prevent a birth or conception.

However, the anti-Choice movement of American Evangelicals is far more recent. The most prominent myth about the origin of their embrace of the movement is that it was in response to the aforementioned Supreme Court ruling. But this simply isn’t true.

“In fact, the Southern Baptist Convention, they actually passed resolutions in 1971, 1974 and 1976 – after Roe v. Wade – affirming the idea that women should have access to abortion for a variety of reasons and that the government should play a limited role in that matter, which surprised us. The experts we talked to said white evangelicals at that time saw abortion as largely a Catholic issue. [The real answer is} in short, desegregation. Two years before Roe v. Wade, in 1971, there was a Supreme Court case [Green v. Connally] that began to pull white evangelicals into politics.”

https://www.npr.org/2019/06/20/734303135/throughline-traces-evangelicals-history-on-the-abortion-issue

For those that don’t realize it, Southern Baptists have a long history of racism and segregation, which the leadership has in recent years denounced, but the church members have been slow to embrace that rejection.

In fact, it was Paul Weyrich, co-founder of the Heritage Foundation, who saw the Roe v. Wade ruling as an opportunity to get the racism of the White Evangelicals politically energized by allowing them a lynchpin single issue voter stance that would mask their racist motivations against racial desegregation in a time when the federal government was openly expanding civil rights for people of color.

“The new political philosophy must be defined by us [conservatives] in moral terms, packaged in non-religious language, and propagated throughout the country by our new coalition,” Weyrich wrote in the mid-1970s. “When political power is achieved, the moral majority will have the opportunity to re-create this great nation.” Weyrich believed that the political possibilities of such a coalition were unlimited. “The leadership, moral philosophy, and workable vehicle are at hand just waiting to be blended and activated,” he wrote. “If the moral majority acts, results could well exceed our wildest dreams.” But this hypothetical “moral majority” needed a catalyst—a standard around which to rally. For nearly two decades, Weyrich, by his own account, had been trying out different issues, hoping one might pique evangelical interest: pornography, prayer in schools, the proposed Equal Rights Amendment to the Constitution, even abortion. 

https://www.politico.com/magazine/story/2014/05/religious-right-real-origins-107133

This requires us to ask:

If this religious belief is not a deeply held matter of religious doctrine for your religion, but a political construct of White Nationalism and White Supremacy, how exactly can anyone who is not inherently racist continue to adhere to it as a religious objection?

For those whose objections stem from a professed Pro-Life belief, we can see the fallacy for anyone who does not also support pro-life stances for the already living.

A Pro-Life religious stance claiming that it is a mortal sin to take a life, would also require opposing war and the death penalty, as well as advocating for doing everything possible to make sure all the living had access to at least a bare minimum of health care, food, and shelter for all people, regardless of their own religious beliefs or ethnicity. Then there is also the consideration of unplugging someone who is on life support and brain dead, how is the argument different for a fetus that has not yet developed a functioning brain?

The Moral Implications

All of the above requires us to examine our moral stances and justifications, whether we consider ourselves to be Pro-Choice or Anti-Choice.

At what point of development should a fetus be considered a legal citizen with the constitutional protections of personhood? Is it when there is a fetal heart beat, a real heart beat, a developed brain, the first actual breath?

At that point, do the rights and concerns for protecting that fetus outweigh or override the rights and concerns of protecting the pregnant woman carrying it?

Since the fetus is both unaware and unable to make informed medical decisions for itself, should each pregnant mother apply for full medical conservatorship of their fetus in order to circumvent the laws.

What rights should the biological father have in such a decision, especially if the pregnancy was the result of rape or forced incest?

What if the parents have different religious beliefs; whose take priority? Is the answer a matter of who will have to carry the pregnancy or is it a matter of giving one religion a higher legal standing and precedent over others?

Shouldn’t the punishments for incest, rape, and sexual assault be far more severe than the punishment for an abortion resulting from such an attack?

Any claims that a woman or girl who has been impregnated should be forced to carry to term and put the baby up for adoption ignores the the health and economic issues that may make that impossible and the roughly 100,000 to 125,000 children in orphanages and foster care each year that do not get adopted for various reasons. Shouldn’t we find a way to properly take care of them before adding to their ranks?

These are not the only questions, and none of them are simple, but they must be answered.

Until they are, these laws are nothing but a war on women and often one that is deeply entrenched in a history of racial hatred and oppression.