Rights of the Unborn

  • The Unborn are the ones with the greatest risks to their existence and the least ability to defend themselves—they are the ones most in need of the protections of our constitution.

  • Roe Vs Wade is arbitrary, ambiguous and is not focused on the rights of the Unborn—it should be overturned.

  • There should be a new Ruling/Law, replacing Roe Vs Wade, that focuses on the rights of the Unborn.  This new Ruling should effectively ban abortion.

Summary:

The Unborn have the greatest risks to their existence and the least ability to defend themselves.  They are the segment of our population that is most in need of the protections that come from our constitution. The Supreme Court, in its Roe Vs Wade decision, ruled that the Unborn begin to have constitutional protections only when they are able to live outside of the mother’s womb.  The Roe Vs Wade ruling is arbitrary, ambiguous and should be overturned.  I understand, and have sympathy for, arguments that support the right to choose whether or not to carry an unborn to its full term.  But given the vulnerability of the unborn I believe their needs/constitutional rights take priority over the liberties of those that want the freedom to terminate a pregnancy.  I am against abortion except in the most extreme situations--life of the mother.  Note that if, at this time, we are unable to get a ban on abortions then the effort should shift to reducing the time for which abortions are permitted.  So instead of basing the permitted time on the viability of life outside the womb it could be, for example, based on the detection of a fetal heartbeat. 

Discussion:

Perhaps the most difficult challenge for our constitutional government is to write laws that maximize the liberties of most citizens without significantly reducing the liberties for others. Writing the laws that regulate abortion is almost certainly the most extreme example of where the liberties of one group, women, conflict with the liberties of another, the Unborn.  The laws that regulate abortion should ideally find the balance between women’s rights to control their bodies and the rights of the unborn child to remain alive.  Note, however, the extreme   asymmetry in the positions of the Unborn and the women that want the freedom to choose.  The Unborn are the weak party, unable in any way to defend themselves.  Furthermore, they are not simply losing some liberty but rather losing everything.  Given this asymmetry, the focus of any laws regulating abortion should be to protect the rights of the Unborn.

    

I believe the Roe Vs Wade decision is a bad ruling and it should be overturned. In its Roe Vs Wade decision, the Supreme court effectively stated that abortions are legal until the time when a fetus can live outside of the mother’s womb.  The Court went on to say that this stage of development is reached in the second trimester of pregnancy.  The Court then said that the States have the right to specify when, during the time of the second trimester, the Unborn have developed enough live outside the womb.  Prior to this time, per Roe Vs Wade, abortion is legal.

I disagree with Roe Vs Wade partly because the criterion used to determine when abortions are permitted, the viability of life outside of the womb, is both arbitrary and ambiguous.  Roe Vs Wade implies that the Unborn only gain the right to life when we can survive outside the womb.  This “legal line” has no logical justification--it’s simply arbitrary.  People don’t lose their right to live when they must use “unnatural” means (e.g. dialysis, heart valves, pace-makers, etc.) in order to survive.  Similarly there is no reason why unborn children should be subject to termination simply because they still need a very natural aid, their mother’s womb, to survive.

The “capability-to-live-outside-the-womb” criterion, in addition to being arbitrary, is also ambiguous.  Today the ability to live outside the womb depends upon the availability and sophistication of medical facilities.  If advanced facilities are readily available then newborns can arrive quite prematurely and still have a good chance to survive.  For fortunate babies, whose mothers live near advanced medical facilities, the period for legal abortion, per Roe Vs Wade, is relatively short.  Where medical technology is older or unavailable it will take more gestation time before a child can independently live outside of the womb.  So, per Roe Vs Wade,  an unborn child living in areas with nonadvanced medical technology, would be subject to abortion for much longer periods of gestation.  Roe Vs Wade seems to require that the capabilities of nearby medical facilities be reviewed for each abortion request in order to determine its legality. Women can increase the time allowed for abortions by traveling to abortion clinics that are far from advance medical facilities.  Furthermore, even when the capabilities of facilities are reviewed, there is no way to confidently determine when an Unborn’s life is viable outside the mother’s womb.  This ambiguity makes it practically impossible to use Roe Vs Wade to decide when an abortion is permitted.

My belief is that because of the arbitrary and ambiguous nature of Roe Vs Wade it was a flawed ruling and should be overturned.  Beyond that, as previously discussed, the Unborn should be the focus of any laws governing abortion--Roe Vs Wade clearly does not make protecting the Unborn child its focus. What law should replace Roe Vs. Wade?  In order to justify an answer one would need to consider legal, scientific, philosophical and moral questions.  Even with all of that it will largely come down to opinions.  Given their weakness and potential losses, I think the Unborn should get the benefit of any doubt.  This means that the law replacing Roe Vs. Wade should protect the unborn by effectively banning abortion.  The one qualification that I would place on this is that abortion be an option if the continuation of the pregnancy threatens the mother's life.

 

Until Roe Vs Wade is over turned we will likely continue to have legal abortions. Given that I also believe that the government should continue to follow the Hyde amendment.  This amendment bans government payments for abortions.  This amendment has been included in government appropriation bills since 1976.  However, for the 2022 budget, Senate and House Democrats have voted to remove this restriction—(https://www.senate Democrats ditch Hyde amendment for first time in decades | TheHill).  At this time it is not clear whether Medicaid appropriation bills, that do not include the Hyde amendment, will be approved in the senate or blocked by a Republican filibuster.  I strongly believe the Hyde amendment should be included in any such appropriation bills.