On May 19, 2019, NBC’s “Meet the Press” moderator Chuck Todd went straight to the heart of today’s abortion debate when he asked, “When does a fetus have constitutional rights?”
The U.S. Supreme Court’s 1973 Roe v. Wade answered that question by effectively splitting the difference between a pregnant mother and her gestating embryo. The mother could choose abortion during the first two trimesters of pregnancy. Thereafter, the fetus’s rights pre-empted the mother’s choice, unless her life was threatened.
Today, several states are restricting abortions, with Alabama’s law perhaps being the most draconian: once there’s a fetal heartbeat, abortion becomes illegal. Doctors performing abortions thereafter face criminal prosecution. If convicted, they could receive 99-year prison sentences. Exceptions for rape and incest aren’t allowed; only the mother’s health might justify a late-term abortion.
Roe v. Wade is a poorly reasoned Supreme Court decision. One flaw is that it is premised on fetal viability. As science advances, fetal viability may arrive sooner. A fetal heartbeat now serves as a proxy for viability.
What does the Constitution actually say on the subject? Read the Fifth and 14th Amendment, and you will see that the law protects “people” from being “deprived of life, liberty, or property, without due process of law.” The Constitution does not, literally, protect “life”; it protects “people” from being deprived of “life” by government action. “People” and “life” are not synonymous.
To answer Todd’s question: a fetus gains constitutional rights and protections once it becomes a “person.” The critical issues are when a person begins and when a person ends. We need clear, consistent, practicable answers; otherwise we’ll produce incoherent policies and laws.
Western philosophy suggests that a person exists when there is a simultaneously united and functioning mind and body. Separate one from the other and you cease to have a person. You can’t have a person without also having human life, but you can have human life without also having a person.
Take the case of Karen Quinlan, who survived in a persistent vegetative state many years after an adverse drug and alcohol reaction. Throughout her terrible ordeal, Quinlan’s body had a heartbeat, but she had irreversible brain damage. After a legal battle, her parents had her removed from a respirator, and she lived several more years before succumbing to respiratory failure. Her parents and the doctors who removed the respirator were not charged with any crimes. They may have ultimately contributed to ending a human life, but they did not kill a person.
Human life begins at conception, but is that human life a person under the law? A fetus is a potential person, but it defies logic and science to consider a ten-cell fetus a person. A hair follicle, or a tooth, has more living cells and could possibly be kept alive for an extended period, but neither constitutes a person.
As more states enact strict abortion limits, it is worth considering carefully what these laws provide. Some states permit exceptions for abortions after rape or incest. That position, however, is logically inconsistent. If human life is to be protected from the moment of conception, why should it matter how that human life came into being?
Rather than have exceptions, these anti-abortion advocates should favor requiring the mother to carry the fetus to term, prosecuting the felonious father, and then seeking adoption. At least the Alabama statute is internally consistent by not allowing abortions for rape or incest. But consistency is about the only positive thing in Alabama’s statute.
So what’s the answer? How should we resolve one of the most controversial, political, emotional, and religious issues in modern American life? Some conservatives (forgetting their usual hostility toward big government) want government to ban abortions; some liberals (forgetting their usual embrace of big government) want unrestricted abortions on demand up to and, perhaps, including birth.
Focusing on personal identity suggests a workable outcome independent of viability. A mother loses her abortion rights once the fetus becomes a person, usually sometime in the third trimester when the fetus’s mind and body are united. Because pregnancy gestation periods can differ, the decision about when a person comes into being in that third trimester should be left up to the mother and her physician(s), not the government. This approach would also preclude late-term, partial-birth abortions (because there’s now a person), except when the mother’s life is an issue.
It’s time to reframe the abortion debate within the context of determining when a person begins and when a person ends.
Charles Kolb served as deputy assistant to the president for domestic policy in the Bush White House from 1990-92.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.