Roe v. Wade: the court decision

For a long time now, the term "Roe v. Wade" has been a code phrase expressing a political desire to legislate morality, and the actual court case has receded into the distant reaches of memory--that is, if the people using the term had ever understood the ruling. Now that Bush has won a second term and Justice Rundquist is clearly very ill, the "Roe v. Wade" call to war is causing Republicans to fight amongst themselves.

So, what exactly does Roe v. Wade say about abortion?

In reviewing the history of legal rights of the unborn, the court found, "the unborn have never been recognized in the law as persons in the whole sense." That is, this issue rests on whether the unborn has "personhood" in the whole sense. Most arguments about abortion assume that "personhood" does not require deliberation. Yet, as a society, are we really ready to invest the unborn with full personhood? The consequences of that legality must be fully explored, as it would involve holding the pregnant woman potentially guilty of neglect and child abuse for questions of nutrition and unhealthy practices. This is generally considered a can of worms that our legal system cannot afford to open. If our courts are now bearing the weight of lawsuits against companies for offering fattening food for sale and for offering clearly marked tobacco for sale, just imagine the consequences of holding the vessel responsible for perfect nurturing of the unborn. And not just the vessel, but the father, as well, who would be responsible for financing the perfect nurturing of the unborn. From the practical standpoint, consider how unsuccessful we are at getting father and mothers to perfectly nurture the born, and consider the conflict arising from a definition of "adequate nuture." This is the starting point for the judicial ruling, and it has to be the starting place for any legitimate discussion of abortion.

But back to termination of pregnancy--what does the judgment on Roe v. Wade say about induced abortion? First of all, it does NOT say that a woman has the right to terminate a pregnancy in any stage of gestation. It defines three stages in pregnancy and holds different rulings on the three stages. The following is exact wording from the U.S. Supreme Court decision:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

That means, essentially, that the court allows abortion pretty much "at will" in the first 12 weeks. After that, the states may pass laws limiting abortion. Furthermore, after "viability" (that is, once the unborn can survive on its own) may outlaw abortion except to preserve the life or health of the mother.

So legislations concerning "late-term" or "partial-birth" abortion do not overturn Roe v. Wade. But because they do not allow for exception when the mother's life or health is genuinely threatened, they are unconstitutional--for reasons unrelated to Roe v. Wade.

What we are arguing about when we take up the political "Roe v. Wade" versus the judicial Roe v. Wade is the first twelve weeks, or the first trimester, of pregnancy, when nature herself spontaneously aborts (by miscarrage) one-quarter to one-half (doctors disagree within these boundaries) of all pregnancies.

In a perfect world, a politician could discuss this issue in a way that would educate the public, but in our world, politicians use the "Roe v. Wade" code to mean something else.

And then there are the Orwellian double-thinkers, who argue that abortion is murder and should be outlawed, except in the cases of rape and incent, when it's okay for the mother to choose to "murder" the unborn--just so long as "they" get to decide when a mother has a right to make a choice. This boils down to a punishment against a woman for having willing sex. This is only "fair and equal" treatment under the law if the woman can hold the chld's father equally responsible--that is, both legally and financially responsibly for raising the child, and that would require much tougher criminalization of child-support enforcement laws.

This is a very emotional issue because it involves the generation of life and the propagation of our species. People have very strong opinions--and that's how it should be. People should decide for themselves whether they believe it is "right" to abort a fetus in the first 12 weeks--and then should follow their own beliefs. That's what "pro-choice" means. It doesn't mean "pro-abortion," which is a phrase used by the other side; it means exactly what it says: the individual needs to make this choice using moral reasoning.

Turning this moral decision into a legality is a problem. The movement of moral decisions into the legal arena has already caused our courts to bog down. Until the embryo is awarded full personhood--and we must consider the implications of such a move--this is a moral issue, not a legal issue.

Legislating a moral issue only results in weaker morals within a society, because a truly moral society does not act morally in order to avoid punishment. A moral society acts in accord with individual morality. We need to stop talking about legislation and, instead, talk about making individual moral decisions and taking individual responsibility for the consequences.