On February 5, 2022. Politico published a draft opinion from the US Supreme Court that would overturn the historic Roe v Wade decision from 1973. For the past 49 years, Pro Life advocates have fought that abortion should be more than illegal in the United States, it should be unthinkable. Every year since October, 1974 there has been a “March for Life” in Washington DC. In 2017, the first annual Women’s March on Washington took place, becoming the largest single day of protest in American history. But before we get into feminist causes of 70s second wave feminism and today, let’s look into the text of Roe v Wade and the Supreme Court’s draft opinion.
Roe vs Wade attempted to create a point of viability in pregnancy. Viability being the “…capability of meaningful life outside the mother’s womb.” What we saw happen was the state attempt to determine its interest in protecting the, “potentiality of human life.” While this argument may not seem , the notion of protecting a potential life has shortened. Now we see an argument from the pro-life movement that claims, “A life in the womb is as human as a life outside the womb.” Alito states that people of different states may evaluate when viability is possible would be different in separate States and that the Supreme Court should let those states decide their own laws regarding the controversial procedure.
Roe vs Wade and Planned Parenthood vs Casey argued about potential human life. This made the arguments distributed by Justices difficult to process. In 2004, the Unborn Victims of Violence Act was passed. This law created a separate offense if an individual kills or injures an “unborn child” while committing a federal crime against a pregnant woman. Abortion providers and women who consent to abortion are exempt. Essentially, if you consented to an abortion and received said procedure, both you and the practitioner would be exempt from this new law.
But things have changed in recent years. In 2021 the state of Texas instituted an abortion ban that allowed private citizens to sue anyone that "aids and abets” an abortion that occurs following a six-week gestation period. This bill received nationwide flack as most pregnant persons are unaware of their condition by that point. What also Made the bill particularly controversial was the ability for private citizens to sue anyone from the doctor who would perform the procedure, to whomever would drive the pregnant person to the clinic, to the one that night be paying for said procedure. Each lawsuit became set at a $10,000 minimum for each defendant. Meaning that if there are several defendants, they each pay $10,000 in damages to the plaintiff. A pregnant person’s consent to the abortion can not be used as a defense under S.B. 8. This language contradicts the Unborn Victims of Violence Act of 2004. The reason? The Pro-life movement has decided that fetal personhood is the argument that make abortion illegal and unthinkable.
So, why would Pro-life advocates make this shift? It's unfortunately very simple. It's a lot easier to create laws about a human life than the potential for one. Alito states in his draft opinion that determining viability is complicated and that several states have enacted bans that prohibit pre-viability abortions.
Viability is a difficult measure to observe. During the time of Roe, viability was measured at 28 weeks gestation. Yet we’ve seen cases where fetuses are capable of survival before that time and vice versa. We then become faced with determining when a fetus is a human person. To those on the pro-life side there is a clear line. When implantation occurs and the blastocyst attaches the uterine wall. Once this stage occurs, the mass of cells is called an embryo. This period occurs generally within a week of conception.
Some Pro Choice advocates have campaigned for “late-term” abortions. These procedures are generally understood to take place after the 21st to 24th week of gestation, late in the second trimester. There are no abortions occurring at full term. Full term is generally observed as 37 weeks of gestation and so on. According to the CDC, around 1.3% of abortions are, “late-term.” The vast majority of abortions, in the US take place at or before 13 weeks gestation.
In Roe v Wade the Supreme Court refused to, “resolve the difficult question of when life begins.” And with advancements in medicine and technology the marker for viability changes with each pregnancy.
Image from March for Life Homepage. 05-09-2022
We now see a line of reasoning from the Pro Life movement that determines that every fetus is a human and that abortion is a discriminatory practice. That a fetus before 15 weeks gestation is not valued and protected by the law.
Image from March for Life Website. 05-09-2022
Image from LiveAction.org Homepage 05-09-2022
We can see a clear rhetoric used by popular pro-life movements. That all fetuses are human beings and therefore they are entitled to the same rights and dignity as all others. This is the idea of fetal personhood. If we allow all fetuses to have basic rights it very well may become unconstitutional for any state to allow abortion. These ideas are mainstream in the Pro-life movement. While it may not be explicitly stated, I encourage everyone to dip their toes into Pro-life websites and see what we may be up against in the fight for a woman’s right to choose.
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