Two days until Supreme Court hears Dobbs v. Women’s Health Organization: Part Two of Two

By Dave Andrusko

As a reminder, in Dobbs v. Women’s Health Organization, which the Supreme Court will hear Wednesday, the justices will consider “whether all pre-viability prohibitions on elective abortions are unconstitutional.” Amidst all the pro-abortion gloom and doom hysteria, I found the frank admission by pro-abortion Prof. Sherry F. Colb startling:

Viability, however, would appear to have little to recommend it as a border between prohibiting and permitting abortion. What changes when a fetus becomes viable outside the womb? What changes is more or less that the fetus’s lungs have developed enough to take in oxygen without the placenta to absorb it from the mother’s bloodstream and pass it along through the umbilical cord. Is the ability to breathe outside the womb a morally relevant characteristic? How could it be? The ability to breathe is essential for life, but it is not the sort of thing to which we attach moral status, any more than the ability to see or to walk or to speak are such abilities. Such capacities are morally neutral, at best. At worst, a fixation upon them as a prerequisite for rights appears to embrace a problematic ableism. Are people who cannot breathe without assistance somehow “less than” those who can?

She, of course, works her way out of the corner into which she had painted herself but she acknowledges that viability is a thin (and illogical) reed to lean on.

Follow the science, you might say. An amicus brief filed by Maureen L. Condic, Ph.D. and the Charlotte Lozier Institute argues

Because scientific understanding of human fetal life has expanded exponentially in the decades since those decisions, this Court should revisit its prior precedents to incorporate the compelling state interests implicated by current scientific knowledge about pre-viability fetal life….

Scientific and technological advancements since Roe and Casey have cemented the State’s compelling interests in protecting human fetal life long before viability.

Reporters worth their salt, such as the New York Times’ Adam Liptak, also grasp that “viability” was inherently unstable and likely to last (admitted a long time) only until the justices were either forced to or more favorably disposed to acknowledge advancements in fetology.

First, he quoted Prof. David S. Cohen, who said “Viability is supported by a principle in a way that other cutoffs are not.” But then

At the same time, drawing the line at viability has long been the subject of criticism. “The viability framework has always been something of an embarrassment, in large part because viability hinges on medical technology and access to it,” said Julia D. Mahoney, a law professor at the University of Virginia.

“Viability” was pegged at around 28 weeks when Roe was handed down; it is now closer to 23 weeks. Even pro-abortion Mary Ziegler, a law professor and historian at Florida State University, acknowledged how it violates our “moral intuitions:”

“Viability has come in for criticism from some bioethicists, both pro-choice and pro-life, essentially on the theory that it doesn’t track our moral intuitions of when life takes on value to focus exclusively on dependency, especially if dependency tracks technological development or even technological availability.”

Unless you follow the scholarship, you don’t know that “Justice Harry A. Blackmun, who wrote the majority opinion, initially chose another place to draw the line, at around 13 weeks,” Liptak wrote.

“I have concluded that the end of the first trimester is critical,” he wrote to the other justices in 1972. “This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” (“Quickening” is when a woman becomes aware of fetal movements, often around 16 weeks.)

“Justice Thurgood Marshall helped persuade his colleague to choose viability, around the end of the second trimester.”

“’Given the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion,”’ Justice Marshall wrote to Justice Blackmun, “I fear that the earlier date may not in practice serve the interests of those women, which your opinion does seek to serve.”

(Justice Lewis Powell was also instrumental in shifting the boundary. See here.)

One other very important element: the capacity of the unborn child to experience pain:

This Court’s prior abortion precedents, based on data and methodologies long since proven obsolete, do not adequately account for new and growing insights into early fetal life. Nor, considering overwhelming proof of the fetus’s capacity for consciousness and suffering, can constitutional law continue to shrug at the independent ethical significance of human life before the arbitrary threshold of viability.

Because Roe and Casey do just that, they should be overruled or, at a minimum, adjusted so as to uphold laws, like the Gestational Age Act , that account for the reality of fetal consciousness and pain near the beginning of the second trimester.

Tomorrow, our last look the Gestational Age Act before oral arguments.

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