Will Roe v. Wade be reversed by the US Supreme Court?
by Neri on July 7th, 2018, 8:09 am
With the retirement of Justice Anthony Kennedy from the US Supreme Court, many have speculated that the appointment of a conservative justice to that court (because it will tip the balance in favor of the conservatives) would likely result in the reversal of Roe v. Wade.
However, it is unlikely that this will happen—not so much because of the doctrine of stare decisis [Indeed, the holding in that case was itself a major departure from prior precedent] but rather because, according to all the polls, the vast majority of Americans believe that a woman should have an unfettered right to an abortion during the first trimester of pregnancy.
On the other hand, a majority of Americans are opposed to partial-birth late-term abortions. Thus, the belief that a woman is entitled to an abortion on demand at any point during her pregnancy is not widely held in the U.S. Nor is it the law in the countries of Western Europe.
Under Roe, a woman has an unrestricted right to an abortion only during the first trimester of pregnancy. During the second trimester, the states may impose regulations on abortions so long as their purpose is to preserve the health of the mother. Because, by the time of the third trimester, the unborn child is viable, the Supreme Court held that the states may prohibit abortions altogether during that period, but they are not required to do so.
However, only a handful of states allow abortions during the third trimester. The remaining states typically prohibit abortions after the 24th week of pregnancy and impose criminal penalties on abortion providers (though not on the mother herself). The conclusion of the 24th week of pregnancy ends the second trimester and begins the third.
A viable fetus is one that can survive outside of the mother. Why is the threshold of viability so important in abortion cases? The Court in Roe said that, after viability, the fetus has the clear potential for human life. But why is this so?
The facts of the matter are these:
(1) When a fetus that is not yet viable is aborted, its death is a necessary consequence of separating it from the body of the mother, in the sense that no separately calculated act of killing is required.
(2) Because, in the case of a viable fetus, the mere separation of the child from the body of its mother will not result in death, a separate overt act designed to kill the unborn child is necessary to provide a satisfactory result in the eyes of the mother.
It is important to understand that the federal statute prohibiting partial-birth abortions does not prohibit the states from allowing abortions in all cases during the third trimester.
A partial birth abortion is what is called in medicine dilation and extraction. This involves dilating the mother and starting the birth process. When the child is half way out of the mother’s body, it is deliberately killed by acts too gruesome to be repeated here. The procedure differs depending on whether it is a normal or breech birth but is equally brutal in either case.
Abortion providers know that the child should not be allowed to completely leave the body of the mother and take its first breath; for, if this happens and the physician thereafter deliberately kills the child, the physician will be guilty of murder.
Indeed, a newborn is considered a person within the meaning of the 14th Amendment to the U.S Constitution. As such, it is entitled to equal protection of the law and cannot be deprived of life.
However, in Roe, the Supreme Court specifically held that a fetus (even in the third trimester) is not a person for purposes of the 14th Amendment.
The Supreme Court in another case held that the U.S. statute prohibiting partial-birth abortions does not violate the constitution. As I mentioned earlier, a majority of the population believes that abortions of this type should be banned.
However, not all abortions done in the third trimester are partial-birth abortions. If a near full-term child is killed while completely in the womb--no matter how appalling the procedure--the current state of constitutional law does not prevent the states from allowing such a procedure.
This loophole would be eliminated if the Supreme Court ruled that a viable fetus is a person for purposes of the 14th Amendment, whether in or out of the mother. This would have the effect of prohibiting third-trimester abortions in all the states. Only time will tell if a more conservative Supreme Court will limit the current law of abortion in this way. However, it is not unlikely that they will.