The Dred Scott Supreme Court decision of 1857 ruled that people of African descent could never become citizens of the United States, and therefore the Missouri Compromise that outlawed slavery in the northern states and territories west of Missouri was unconstitutional. It effectively denied African Americans their personhood and humanity. It is considered to be one of the worst rulings the Supreme Court has ever made, and the most egregious example of judicial encroachment upon legislative prerogative in American history. In other words, the American people, not the nine justices of the Supreme Court, should write the laws that define right and wrong for American society.
We are revisiting the same situation today. Prior to the 1973 Roe V. Wade decision, most states outlawed abortion. But in Roe V. Wade, the Supreme Court declared those state laws unconstitutional. It sought to balance the pregnant woman’s right to privacy and control over her own body with the rights of her baby to be born. The Supreme Court set the balance point at fetal viability, meaning when the fetus could survive with medical support outside of the mother’s womb, which is approximately at 24 weeks of gestation. States could only regulate abortion after this point, and then only if they made exceptions for the woman’s health, mental and physical.
Since then, states have varied in their restrictions on late term abortions, with some requiring the father’s notification or, as in Virginia, requiring three doctors to certify that the abortion was necessary to prevent irreversible damage to the mother. It has been a tricky business for the Supreme Court to decide how much regulation of abortion is constitutional. In 2007, the Supreme Court upheld a federal ban on partial birth abortions, a stomach-turning procedure where the living baby’s head is punctured and brain suctioned out during delivery so that its collapsed head is easier to pull through the cervix. In 2016 however, it struck down a Texas state law that raised the bar for medical credentials of abortion providers, as the higher requirements would result in the closure of too many abortion clinics, thereby restricting access to abortion.
Now that Justice Kavanaugh has been confirmed on the Supreme Court, there are enough conservative justices to possibly overturn Roe V. Wade. Therefore liberal state legislatures are scrambling to codify the most liberal interpretations of Roe V. Wade that they can get by with into their state laws, whereas conservative states see the opportunity to challenge Roe V. Wade by pushing for abortion restrictions even before fetal viability. So red states like Tennessee, Florida, South Carolina, and Ohio are considering heartbeat bills that ban abortion after detection of a fetal heartbeat. Blue states are moving in the opposite direction. Last month, New York declared abortion to be a “fundamental right” and allows third trimester abortions of viable fetuses if necessary to protect the mental or physical health of the mother, broadly defined. There are no specified penalties for violations. In New Mexico and Rhode Island bills have been introduced that decriminalize abortion, remove requirements to inform the husband, and (in Rhode Island) remove the ban on even partial birth abortions. On the surface, there seems to be a political game going on, with red states pulling for the right of the unborn child to live and blue states pulling for the rights of the pregnant woman to control her own body.
But then Virginia jarred the nation to attention during public discussion of their proposed legislation to liberalize access to abortion. When Democratic delegate Kathy Tran was asked if her proposed legislation would allow a baby to be aborted right before birth during labor, she answered that it would. During a radio interview two days later, Democratic governor Ralph Northam of Virginia, who supports Tran’s House Bill 2491 and said he would sign it into law, was asked about an even more extreme scenario. If a baby actually survived a late term abortion and was born alive, what would the bill allow the doctor to do? Northam replied, “The infant would be kept comfortable. It would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physician and the mother.”
These clarifications galvanized the nation. Tran tried to backpedal and claim she misspoke as the baby during labor would be considered an infant, and infanticide is not legal in Virginia. Of course that begs the question of what about the hour before labor begins? One day before? Two days? Perhaps drawing the line at birth is just a bit subjective?
Gov. Northam’s comments had even more chilling implications. He described what would happen in a scenario in which the baby had already been born and was clearly viable completely apart from the mother’s body. Babies of a similar gestational age who were unintentionally born prematurely would be immediately whisked off to the neonatal intensive care unit. But a baby who survived an abortion would be allowed to die of neglect for only one reason, that its mother did not want it alive. Since when should anyone be allowed to say the value of a human life should be so defined? The baby is obviously past the balance point of viability defined in Roe V. Wade. Where are the child’s protections from the state, of an individual’s most fundamental of the inalienable rights, that of life?
To deny the baby who survives an abortion medical care is to deny its personhood. We are back to the barbaric mentality of the Dred Scott case where African Americans were denied their humanity. That is what happens once anyone, be it the mother, the doctor, the slaveowner, or the state gets to decide if you are a person or not. If more bills like HB 2491 get passed, we are not far from painting on our barn wall, “All animals are created equal, but some are more equal than others.”
Our current controversy over the point at which abortion should be legal is nothing new. Roe V Wade was always a flawed ruling. It made the exception for late term abortions so broad that it’s no wonder that extremists along the Pro-Choice spectrum are proposing these unbalanced laws that allow for abortion right up to the time of delivery at the mother’s prerogative. But in a 2012 Gallup/USA Today poll, only 14% of Americans supported a policy of legal abortion at any stage of pregnancy. And the number of abortions after 20 weeks are not trivial. There are about 12,000 a year, more than the annual number of gun homicides in the country. And, according to a 2013 study of abortions after the 20th week of pregnancy, “most women seeking alter terminations are not doing so for reasons of … life endangerment.” This is no material for a political game. Whether you call them fetuses or babies, whether you affirm their humanity or refuse to call them persons, human lives are at stake. We are at a point in the history of our nation’s moral life where many are seeking to shift the balance point established by Roe V. Wade past the point of fetal viability to the complete denial of the humanity of the unborn child. I support President Trump’s call during his State of the Union address for the people to recapture their prerogative from the courts and ban late term abortions where the mother’s life is not truly endangered and the denial of medical care to babies who survive abortion. Otherwise, as Mother Theresa said, “ If abortion is right, anything can be right.”
