Roe v. Wade and the Ethical and Legal Problems of Defining “Viability” over 20 Years Later

        By John Veazey, Guest Columnist

          In 1973, Roe v. Wade came down like a bolt of lightning from the United States Supreme Court. Roe v. Wade, taken together with its sister case Doe v. Bolton, held that that a woman has the ability, and to a great extent, an inviolate legal right to abort an unborn child throughout her pregnancy.

            Justice Blackmun, writing for the Roe majority, held that the 14th Amendment affords a right “of privacy [that encompasses] a woman’s decision whether or not to terminate her pregnancy”.  In the decision, the court set up a three-trimester framework. During the first trimester, a woman has an unlimited right to abort. Before viability, which was roughly at the beginning of the third trimester, a state can regulate the abortion procedure in ways that promote the health of the mother, but cannot proscribe a woman’s ability to get an abortion. After viability, except for cases where the mother’s life or health is in danger, a state can regulate or even prohibit abortion entirely. As the reader may perceive, the Court places great emphasis on “viability” as being the hinge at which a State’s interest in protecting the “potential life” within the mother is greater than the mother’s interest in dictating the course of her life. That status quo largely continues today. Even though the Court rejected the three-trimester framework in Planned Parenthood v. Casey, viability continues to be the point at which States can substantially regulate and proscribe abortion. However, the Court has steadfastly refused to touch the greater and more fundamental issue of “personhood”. At what point in the pregnancy does this “potential life” obtain personhood, with all the human rights that personhood entails?

            There are various pivotal points that have been proposed for when personhood is achieved. The Supreme Court’s chosen point is viability—although the perceptive reader will note that the Court avoided the elephant in the room and did not couch this in terms of “personhood”. This is an extremely arbitrary line. As Justice White wrote in dissent in Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, viability is a moving target as medical knowledge and technology improve, “factors that are morally and constitutionally irrelevant”. The lower limit of viability in the United States is generally regarded as being at 24 weeks, although two Americans have been born at 21 weeks and survived. Viability also changes as you go from country to country. Viability is largely a matter of the state of medical technology in a certain location, which is hardly intrinsic to the question of the essence of the fetus (“personhood”).

            Others have proposed the beginning of brain function as a decisive point, analogizing a lack of brain function to death. However, the two are distinguishable because death is irreversible; a fetus’ lack of brain activity is only temporary. Merely because a capacity is latent does not affect the essence of the fetus. The same logic follows for the ability of the fetus to feel pain, another potential decisive point. This also confuses the reality of harm with the experience of pain. Even when one cannot feel pain, harm can still be done to them. Anyone who’s been anesthetized can testify to this. The appearance of humanness is found lacking as well as a decisive point. At 9 weeks old, a fetus has lidded eyes as well as fingers and toes. This has obvious emotional appeal, but appearance has no inherent relationship to personhood. Adult humans, due to conditions or injury, can look very non-human; all the way from conception, an embryo has the capacity to look like an adult human being. Birth is also a proposed decisive point, but this is found wanting as well. There is no difference between a baby in the womb on the day before it is born and in its mother’s arms on the day after birth—only location.

            In light of the above, I propose that a fetus has full personhood, with all attendant human rights, upon conception. At this point, the child’s genes and sex is set. As a zygote, the child has the full complement of genetic material that it has at adulthood. In one instance, he may be a green-eyed fair-skinned boy with straight, black hair; in another, she may be a brown-eyed darker girl with naturally curly hair. An adult human being is the end result of continuous growth, with no breaks, from conception. The fact that this is a continuous process, where the child has its full complement of genetic material that makes up who he or she is, from conception indicates the reality that one is a human person from conception to death. If personhood begins at conception, and if we have the highest regard for the human rights of persons to pursue life, liberty, and happiness, abortion—along with the case that gave it the imprimatur of constitutionality—is a black mark of the highest repugnance on the national conscience.

John Veazey is a third year law student studying at Louisiana State University’s Paul M. Hebert Law Center.


About civilianglobal

- Featuring employers who are hiring, and what these employers look for - Providing social media tips and online dos and don'ts from large firm hiring managers and personal branding experts - Keeping a global perspective in a modern, global work environment
This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s