Norma McCor­vey, the tit­u­lar plain­tiff “Jane Roe.” Source: AP

Today marks the 38th anniver­sary of the U.S. Supreme Court’s Roe v. Wade deci­sion, which legal­ized abor­tion on demand in the United States.

The Wikipedia entry sum­ma­rizes the facts of the case lead­ing to the Supreme Court’s deci­sion: Norma McCor­vey (known as “Jane Roe”) dis­cov­ered she was preg­nant in June 1969. In an attempt to cir­cum­vent Texas law, which then allowed abor­tion in the case of rape, she first falsely claimed she was raped. That false claim failed because there was no police report.

In 1970, attor­neys Linda Cof­fee and Sarah Wed­ding­ton filed suit in a U.S. Dis­trict Court in Texas. … The defen­dant in the case was Dal­las County Dis­trict Attor­ney Henry Wade, rep­re­sent­ing the State of Texas. …

The dis­trict court ruled in McCorvey’s favor on the mer­its, and declined to grant an injunc­tion against the enforce­ment of the laws bar­ring abor­tion [Note: McCor­vey has since become an anti-​​abortion advo­cate]. The dis­trict court’s deci­sion was based upon the Ninth Amend­ment, and the court relied upon a con­cur­ring opin­ion by Jus­tice Arthur Gold­berg in the 1965 Supreme Court case of Gris­wold v. Con­necti­cut, regard­ing a right to use con­tra­cep­tives. Few state laws pro­scribed con­tra­cep­tives in 1965 when the Gris­wold case was decided, whereas abor­tion was widely pro­scribed by state laws in the early 1970s.

Roe v. Wade ulti­mately reached the U.S. Supreme Court on appeal.

…The court issued its deci­sion on Jan­u­ary 22, 1973, with a 7-​​to-​​2 major­ity vote in favor of Roe. [White and Rehn­quist dissenting.]

I’m always ready to chan­nel my inner Boehner, so here’s the text of the Ninth Amend­ment. (I’m read­ing it out loud, I swear, but I refuse to include an audio file link so you’ll just have to imag­ine it.)

The enu­mer­a­tion in the Con­sti­tu­tion, of cer­tain rights, shall not be con­strued to deny or dis­par­age oth­ers retained by the people.

As I under­stand it, SCOTUS inferred a “right to pri­vacy” in Gris­wold v. Con­necti­cut (regard­ing the use of con­tra­cep­tives), then extended that to first-​​trimester abor­tions in Roe v. Wade. I’m not a Con­sti­tu­tional Law expert, so I will leave the appro­pri­ate­ness of that inter­pre­ta­tion to the dis­cus­sion sec­tion below.

How­ever, I do have some expe­ri­ence in human devel­op­ment and med­i­cine, so I would like to con­struct a spring­board for our dis­cus­sion on that basis as well.

A nor­mal preg­nancy is 40 weeks. Roe v. Wade divided this period (called ges­ta­tion), from con­cep­tion (union of sperm and egg) to par­tu­ri­tion (child­birth), into thirds, called trimesters. The first trimester, then, would be the first 13 weeks; the sec­ond trimester, weeks 14–26, and the third trimester, weeks 27–40.

At the time of the Roe v. Wade deci­sion, not much was known about devel­op­ment in utero, and pre­ma­ture babies were non-​​viable at an ear­lier devel­op­men­tal stage.

I have done a non-​​exhaustive search for infor­ma­tion on via­bil­ity (in grams, or weeks ges­ta­tion) and found not much. If any­one finds more infor­ma­tion and wants to add it to the com­ment thread, that would be wel­come. I do have a 1993 paper by Luke, et al. which says that almost 20 years ago, about half of infants clas­si­fied as “very low birth weight” (VLBW) were viable. That thresh­old is 1,500 grams or about three pounds, and is reached at about 30 weeks ges­ta­tion, or about three quar­ters of a nor­mal preg­nancy. I’m cer­tain that the via­bil­ity thresh­old has shifted, and that most experts would con­sider a ges­ta­tional age of 23–24 weeks to be viable. At the time of Roe v. Wade, I would assume that the via­bil­ity thresh­old was still well into the third trimester.

Gallup Polling: Abor­tion should be (always, never, some­times) legal. Source: Gallup​.com

Pub­lic opin­ion regard­ing abor­tion has remained remark­ably sta­ble in the face of all these sci­en­tific and med­ical inno­va­tions. Gallup polling since 1975 has asked whether abor­tion should be legal under all cir­cum­stances (“always legal”), legal under no cir­cum­stances (“always ille­gal”), or legal under some cir­cum­stances (“some­times legal”). “Always legal” has polled at 21–34% in each and every poll since 1975. “Always ille­gal” has polled at 12–23% dur­ing that same period, and “some­times legal” has always been the clear choice of a plu­ral­ity or major­ity favor­ing it, at 48–61%. My inter­pre­ta­tion of this is that pub­lic opin­ion is rel­a­tively refrac­tory to sci­en­tific facts or progress. Sup­port for, or oppo­si­tion to, abor­tion seems to be an emo­tional deci­sion rather than a ratio­nal one.

Gallup polling: Do you con­sider your­self “pro-​​life” or “pro-​​choice”? Source: Gallup​.com

This view is bol­stered by the graph above, which is dif­fi­cult to square with the more nuanced three-​​part analy­sis (sometimes/​never/​always legal). In June 2010, a minor­ity of peo­ple in the U.S. (45%) con­sid­ered them­selves “pro-​​choice” even though 78% (54% + 24%, respec­tively) con­sid­ered abor­tion to be legal under some or all cir­cum­stances, which to me is the very def­i­n­i­tion of “pro-​​choice.” I would sub­mit that, like the label “lib­eral,” the label “pro-​​choice” has become so tainted that some peo­ple will not self-​​identify even when it’s accu­rate. Speaker Boehner, for exam­ple, has used the anniver­sary to announce his oppo­si­tion to all abor­tions, even though that posi­tion is held by only 19% of Amer­i­cans in the most recent (May, 2010) Gallup polling. He says “the deci­sion den­i­grated the respect we must have for life at all stages, espe­cially the inno­cent unborn.” His state­ment that “a ban is the will of the peo­ple and ought to be the law of the land” is not sup­ported by the facts.

Another approach has been to try to define “life” as begin­ning when the fetus can feel pain. This was the charge to the U.K. House of Lords’ Com­mis­sion of Inquiry into Fetal Sen­tience, which con­cluded that although pain recep­tors may be present as early as 6–7 weeks post-​​conception, that those recep­tors are not wired into cere­bral cor­tex (and there­fore, the fetus can­not “feel pain” by any typ­i­cal def­i­n­i­tion) until about 23 to 24 weeks post-​​conception. (To draw an anal­ogy, while under gen­eral anes­the­sia, you still have pain recep­tors but because they are chem­i­cally dis­con­nected from the cere­bral cor­tex, you do not “feel pain.” A U.K. pro-​​life group led by phys­i­ol­o­gist Peter McCul­lagh which looked at the same data defined the ear­li­est point at which fetal sen­tience is pos­si­ble at 11 weeks.

As a sci­en­tist, I would appeal for a new way of think­ing about human life to cel­e­brate this 38th anniver­sary. Rather than a Manichean, black-​​or-​​white view of human life, I would sub­mit that human life is a con­tin­uüm with an indi­vid­ual sperm and egg being “not alive” and the viable infant being “alive.” Even con­cep­tion is an event in cell phys­i­ol­ogy of no greater or lesser impor­tance than, say, gas­tru­la­tion.

It is not birth, mar­riage, or death, but gas­tru­la­tion which is truly the most impor­tant time in your life.

— Lewis Wolpert, Eng­lish embry­ol­o­gist, 1986.

In between the cre­ation of sperm and egg cells, and the birth of the human, there is slow, steady progress toward life, but no bright shin­ing line that can be drawn to mark the bor­der between “not-​​life” and “life.”

The same is true of the other end of life: death as a process, not an event. My aunt’s death last month illus­trates this. She suf­fered from Alzheimer demen­tia which took her mind years ago. My father and I then became her legal guardians, and there­fore her agents for all aspects of her life. The law rec­og­nized her as a non-​​autonomous per­son at that point. Years after her ini­tial diag­no­sis, the bac­terium Clostrid­ium dif­fi­cile took her life away by the legal, tech­ni­cal definition.

A major­ity of Amer­i­cans already believe that “abor­tion should be legal under some cir­cum­stances.” I believe this is because they have an innate under­stand­ing that the cre­ation of life is a process, not an event. I would argue that we should adopt a new way of think­ing about life, and there­fore a new way of approach­ing the abor­tion debate.