Almost a year ago, we wrote an article titled “Roe vs. Wade” recapping the history of the 46-year-old case. We also provided a summary of new state abortion laws passed early last year challenging the boundaries of the famous ruling. A lot has happened since then on this topic. Eleven states have now passed a similar version of the Iowa “heartbeat” law that was signed last May, including four so far this year. The heartbeat laws ban abortions after a fetal heartbeat is detected (around 8 weeks). Arkansas and Utah have now passed bills banning abortions after 18 weeks. Missouri passed a bill banning abortions after 8 weeks. Most of these new laws have either been temporarily blocked by the courts or have lawsuits pending. The odds of at least one of them making it to the Supreme Court are fairly good.
All the cases cited above define a moment in time (detection of a heartbeat or # of weeks) after which abortion would be against the law in that state. On the other end of the scale, one state has passed a law this year that affirms the legality of abortion. This is the controversial Reproductive Health Act passed in New York. As a side note, Virginia tried to pass a law similar to the New York law earlier this year, but the Governor of Virginia botched the public rollout resulting in the bill being “tabled” for the time being.
The stated intent of the New York law is to preserve protections for abortion even if the Roe vs. Wade precedent were to be overturned by the Supreme Court.1 However, overturning Roe vs. Wade does not make abortion illegal (a common misconception). The only thing overturning Roe vs. Wade would do is allow individual states to completely ban abortion if they choose, which New York obviously would not do. We think this stated “intent” in the New York law is just clever misdirection to draw attention away from other more insidious parts of the law. In our view, the key change is the complete removal of all references to abortion from the New York state penal code. This decriminalizes abortion at any stage of pregnancy, relegating the 24-week limit cited in the law to a mere “health guideline”. Additionally, the new law defines a “person” as a human being that has been born and is alive. Since the New York penal code uses the word “person” to reference the victim of a crime throughout the state’s penal code, any act of violence against an unborn child (abortion or otherwise) now carries no penalty at all. Thus, while the New York legislature proclaims the new law only permits abortions up to 24 weeks, there is no criminal penalty for abortions performed after 24 weeks, even if they don’t fall into any of the exception categories. In our view, this decriminalization of late term abortions is the real intent of the New York Reproductive Health Act.
In stark contrast to the New York law, Alabama recently passed The Alabama Human Life Protection Act. This act outlaws all abortions at any stage of pregnancy with the only exception being a serious health risk to the mother. Most significantly, it also defines the penalty for violating this law as a Class A Felony (murder) punishable by life in prison.2 In addition, this law defines a “person” as a human being, specifically including an unborn child in utero at any stage of development, regardless of viability. The law is set to take effect in November of this year unless a court intervenes. A lawsuit challenging the Alabama law was filed by Planned Parenthood and the ACLU on May 24th.
If any of these new laws that restrict abortion were to be upheld by the Supreme Court, they would change the precedent set by Roe vs. Wade but would not make abortion illegal on a national scale. Should the Supreme Court decide to hear one of these cases, there are three distinct types to choose from. Here’s how we characterize each type:
Heartbeat laws: These laws would eliminate fetal viability – the ability to survive outside the womb – as the determining factor for when a state can restrict abortion. Instead, that legal determination would be based on whether or not a fetal heartbeat can be detected by a physician. As clear as this cutoff point for legal abortion would be, none of the heartbeat laws attempt to define “personhood” as beginning at the onset of the heartbeat. Thus, there would continue to be different penalties for illegally aborting a fetus vs. committing homicide in these states. Confusing matters even further, some of the heartbeat law states also have “infanticide” laws on their books. Under these laws, murder charges can be brought for killing an unborn child (intentionally or not) in the course of an assault on the mother. However, an illegal abortion is specifically exempted from these laws. The undefined “personhood” status of the unborn child in these laws leads to this legal morass.
Laws specifying a fixed number of weeks – While these laws also replace viability as the determining legal factor for restricting abortion in state law, they are still loosely based on the notion of viability. These laws would likely have to be revisited as progress in medical science sets the viability threshold below the fixed number of weeks chosen in this type of law. For example, if the new law in Utah is upheld (18 weeks), and the day comes when medical science enables fetal viability at 17 weeks, the Utah law would presumably need to be amended or replaced and the same viability debate would occur all over again. Also, the same inconsistency of having a lesser penalty than homicide for performing an illegal abortion exists in this type of law just as it does in the heartbeat cases.
Laws based on a definition of when “personhood” begins in the context of abortion – The two extreme examples are personhood beginning at conception (Alabama) verses personhood not beginning until birth (New York). Defining the start of personhood is a slippery legal slope as it remains extremely controversial philosophically. Nevertheless, both New York and Alabama have already gone down this road with their new abortion laws. The big advantage of these two laws, which lie at opposite extremes, is that in either case the state’s criminal laws and penalties are synchronized with their corresponding abortion laws. For example:
Under the new Alabama law, performing an abortion is legally the same as murder, and prosecutable as such. There is no separate “lesser” legal penalty for the case of abortion. There is nothing inconsistent about this because the Alabama law states that an unborn child in utero is a “person” at any stage of development.
Under the New York law, performing an abortion at any stage of pregnancy carries no criminal penalty at all and therefore does not conflict with any existing criminal law. There is nothing inconsistent about this either because the New York law states that a “person” is a human being that has been born and is alive. Thus, New York’s criminal laws cannot be applied to the unborn. This law would remain in effect even if the new Alabama law was upheld.
States with laws in-between these two extremes have some form of hybrid system that penalize abortion violators differently than the homicide laws in that state. That legal difference carries the messy implication that the unborn child possesses some legal standing, but not full “personhood” in the context of criminal law.
It is also possible that the Supreme Court will choose not to hear any of these cases. In that eventuality, the precedent set in the case of Planned Parenthood vs. Casey, which has been in effect since 1992, would stand. That case effectively dispensed with the older “trimester” framework defined in Roe vs. Wade in which viability was presumed to begin with the 3rd trimester (28 weeks). The accepted point of viability today is a full 5 weeks earlier from where it was in 1973 at the time of the Roe vs. Wade decision. We have every reason to expect that medical science will continue to shorten the time to fetal viability for the foreseeable future. This raises an interesting philosophical question – if 100 years from now viability exists from conception (with future incubators capable of supporting an embryo from conception to birth), does it not stand to reason that the viability precedent in Roe vs. Wade will eventually allow states to prohibit abortion from conception? If so, are we letting technology, and not our consciences, define how we think about abortion?
Last is the question of whether any of these new laws would change the fundamental legal underpinning of Roe vs. Wade: that a woman’s right to have an abortion derives from the right to “privacy” as defined in the 14th amendment. The 14th amendment was ratified in 1868 to grant rights, including the right of privacy, to all the recently emancipated slaves. That was its sole contemporaneous purpose. With this historical context in mind, we think the 1973 Supreme Court’s decision to uphold the use of the 14th amendment for the entirely unintended purpose of justifying a “right” to abortion is an exceptionally weak foundation for such a weighty decision. Our thoughts are summed up perfectly by Justice William Rehnquist in his dissenting opinion to Roe vs. Wade: “ …To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment…”. While the heartbeat laws would change the precedent for the point in a pregnancy when states can prohibit abortion, they would not fully overturn Roe’s 14th amendment basis. On the other hand, if the Alabama law is upheld, if would overturn the foundation of Roe vs. Wade since a woman could no longer claim a right to have an abortion in Alabama. In that eventuality, it is unclear how many other states would choose to adopt a law similar to Alabama, but it is very reasonable to expect that many would not, and abortion would remain legal in many states.
For completeness, we should mention briefly the tactic of Missouri and a few other states who are attacking the practice of abortion by refusing to renew licenses for abortion facilities in their state. Just this month, Missouri refused to renew the license for its last remaining abortion clinic. This decision has been challenged in court and the clinic is still open. Should Missouri win the case abortion would become unavailable in the state without any change in Missouri law.
In writing the majority opinion for Roe vs. Wade, Justice Harry Blackmun famously guided the court away from defining when life begins by stating “…We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer…”. If Justice Blackmun were alive today, would he would be pleased to know that man’s knowledge, at least in New York and Alabama, has evolved enough to decide when life begins and to define it in law? We think the definitive move by the present-day Supreme Court would be to take up the Alabama case. The outcome would either completely overturn Roe vs. Wade or be a total re-affirmation of Roe vs. Wade – no murky middle ground or compromise.
1 The following is taken directly from the text of the New York law – “…The legislature declares that it is the public policy of New York State that every individual possesses a fundamental right of privacy and equality with respect to their personal reproductive decisions and should be able to safely effectuate those decisions, including by seeking and obtaining abortion care, free from discrimination in the provision of health care…”
2Theres still exists the glaring inconsistency that the mother is excepted from prosecution and is not penalized at all, not even as an accessory to murder. Abortion providers would be charged with homicide.