Several state legislatures continue to debate or consider laws that would grant fetal personhood, meaning that a baby growing in the womb would have the same constitutional protection as the mother carrying the child.  As a dimension of this discussion, several states are considering “fetal heartbeat” bills that would ban abortion after detection of a heartbeat, which can be as early as six weeks into a pregnancy.  Alabama and Missouri, for example, recently enacted laws prohibiting in effect all abortions except for circumstances where the health of the mother is in jeopardy.  [Such laws go beyond a previous consensus which also included the exceptions of rape and incest.]  As several pro-life activists have argued, the Alabama and Missouri laws will provoke a series of appeals that will end up in the Supreme Court.  The hope is that, with a more conservative Court, Roe v. Wade will be overturned.

Those who defend the right of a woman to an abortion argue that “a pregnant woman would cease to exist as an autonomous person.  Her womb would become a legal battleground.”  Editorially, the New York Times recently wrote:  “To assert the government’s right to protect a fetus as early as fertilization, anti-abortion activists have won the passage of laws in Congress and in state capitals around the country.  That shifting of rights acknowledges a tension at the root of pregnancy, that both parents and society have a stake in successful human reproduction.  And it reflects a tragic reality:  There are circumstances in which the interests of a fetus and those of a pregnant woman collide.”  This “collision” involves more that circumstances and “interests.”  The Roe v. Wade decision set the US on a course where the rights of the mother to have an abortion are protected to the total exclusion of recognizing any rights to the baby still growing in that mother’s womb.  American civilization is at a loss on how to resolve this “tension” and the mounting confusion when it comes to the rights of a fetus.  Meanwhile, each side charges the other with being “extreme and crazy.”  Two important thoughts:

• First, columnist Kathleen Parker brings some balance to those who charge that Alabama and Missouri represent a “craziness,” an extreme when it comes to the abortion issue in America: “The question of craziness, meanwhile, depends upon one’s definition of crazy. Is Alabama crazier than New York, where some protections for babies “born” alive during an abortion were recently eliminated, making it easier to end their life if desired by the abortion-seeker? Is Alabama crazier than Virginia, where Democratic Gov. Ralph Northam seemed to support infanticide back in January when commenting on a proposed bill that would relax some of the state’s abortion restrictions? In a radio interview, he said that in cases where a mother goes into labor with a late-term fetus that has ‘severe deformities .?.?. there may be a fetus that’s not viable .?.?. the infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.’  Trying to clarify after the inevitable firestorm, Northam’s office later said that the ‘discussion’ would be regarding medical prognosis and treatment, not ending the life of the newborn. For a physician, Northam seems challenged to express himself medically. And consider this: Although only about 1.4 percent of abortions occur at or after 21 weeks, the Guttmacher Institute’s data suggests that ‘most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.’ Just to be clear.”

Parker adds an additional insight:  “The crucial aspect of both the New York law and Virginia’s proposed law (which has been tabled, for now) is that they reduce medical oversight of late-term abortions. In both cases, only one doctor would be involved in deciding on and performing a late-term abortion, eliminating additional physicians who can tend to a baby that survives an abortion. New York previously had required two doctors in the room; Virginia required that three doctors certify that continuing the pregnancy would likely cause the patient’s death or that it would ‘substantially and irremediably impair’ her mental or physical health. Thus, a single doctor could decide that a woman’s perhaps fleeting state would be sufficient to end a baby’s potentially viable life.”

• Second, a comment on the legal strategy adopted by the pro-life cause. Law professor Mary Ziegler reminds us of an important point:  “Both the Alabama and Georgia measures rely on the concept of ‘natural law’—unchanging moral principles that have supposedly existed since before the Constitution—to support the idea that a fetus is a person.  Natural law-based arguments for fetal personhood were pursed by anti-abortion scholars and jurists for much of the 1960s and 1970s to little avail . . . By the early 1980s, abortion foes generally gave up on this strategy.  That’s because neither judges nor many other conservative lawyers, it seems felt comfortable with recognizing rights not detailed in the text or history of the Constitution.”

The natural law argument could lead to further litigation beyond the current debate.  If the Supreme Court acknowledges fetal personhood, cases will surely follow dealing with whether the fetus, now recognized as a person with rights, should receive a Social Security number, be considered a dependent when it comes to IRS regulations, for inheritance laws, etc.  It is for this reason that “originalists,” when it comes to interpreting the Constitution (e.g., Antonin Scalia), have argued that this approach should be abandoned.  Because the Court has been reluctant to open the Pandora’s Box of “fetal personhood jurisprudence,” some conservative scholars believe the Court will vote to uphold some form of Roe v. Wade.  We shall see what develops.

The abortion issue remains one of the most difficult ethical issues facing the divided, polarized political culture of 21^st century America.  But, to me, there are two considerations that are incontrovertible:

1. “Whatever transpires in the legal realm, I’ll always wonder how acceptance of destroying the pre-born has affected our humanity. And how many among the more than 60 million Americans aborted since 1973were destined to shape a better world.”
2. The Word of God provides a distinct level of certainty when it comes to life issues: Human life, both inside the womb and outside the womb, is of infinite value and worth to our God.  That proposition is an absolute—and that is what is missing in our cultural discussions on abortion.  Without this ethical absolute, rooted in the image of God concept, as an infallible guide, confusion and polarization will continue.

See Kathleen Parker, “Abortion extremism in New York and Virginia paved the way for Alabama and Georgia’s laws,” Washington Post (17 May 2019) and Mary Ziegler in the New York Times (16 May 2019).