January 22, 1973: Roe v. Wade
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.
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.
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.
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.
- Supreme Court Watch: FOIA Edition
- Supreme Court Watch: University of Texas Southwestern Medical Center v. Nassar
- The Gosnell Murder Trial
- Cruzin’ for a Bruzin’
- Supreme Court Watch: Association for Molecular Pathology v. Myriad Genetics, Inc.
- Rebrand Undone
- Supreme Court Watch: McQuiggin v. Perkins
- Supreme Court Watch: Butt v. Utah
- Supreme Court Watch: Bowman v. Monsanto Co.
- Aunt Sami Wants You!