Friday, February 10, 2012

Supreme Court Decision a Day: Roe v Wade

The vast majority of Supreme Court decisions are actually about pretty boring stuff. There's case set to be heard in a couple of days, Taniguchi v. Kan Pacific which will determine whether the payment for translation services extends to the payments for translating text documents. The case is over a matter of slightly more than $5,000, and the outcome, no matter what's decided, will be of little interest to anyone. So most of what the Supreme Court decides is not of interest to anyone but lawyers and judges, and you can go your whole life without ever hearing about the outcome or having it affect you. Like Brown v Board, this is not one of those cases.

Full Text: At Findlaw.

Held: Abortion is legal in the first trimester at the discretion of a woman's physician, can be limited by the State in the second trimester, and can be limited or made illegal in the third trimester.

Remember what I said in the last post about the Supreme Court having a limited amount of institutional legitimacy that it must carefully spent? Well, this was one of those decisions that spent a whole bunch of that institutional legitimacy.

A quick overview: this was actually three cases brought before the court. The first was Roe, an unmarried woman who had an abortion. The second was a married couple who might like an abortion in the future (due to medical issues). And the third was a doctor who kept getting arrested for performing abortions. The second and third cases were dismissed, though that's kind of moot because of how broad the ruling was - I believe this is what you'd call a "shotgun approach" to the judiciary; present a bunch of cases and then hope that one of them is decided in your favor. (Though of course it's much more complicated than that, I will grant you.)

So, with the married couple and the doctor out of the way, we get to the meat of the issue; to what extent does a right to abortion exist? The first question that has to be gotten out of the way is whether or not a fetus is a person; the Court says that there's no good basis for this in common law, the Constitution, or anywhere else. They leave aside the question of when metaphysical personhood begins, which is probably wise.

In the Court's brief history of abortion law in the United States, they show evidence of a gradual tightening, which they attribute mostly to the medical problems inherent in it. For this reason they place a great deal of importance on the mother's health in their decision, which is part of the State's interest and why they are allowed to make any laws at all about abortion. As a pregnancy goes on, an abortion gets more and more dangerous, which means that the State's interest becomes greater and greater. Prenatal life is somewhat secondary to that, coming into play only once "viability" is reached, which the Supreme Court (somewhat arbitrarily) places at the end of the second trimester (which they would later overturn).

"Viability" is one of my big problems with this case. The real problem with viability is that's it's incredibly vague; there is a percent chance at every point in a pregnancy where the fetus could be grown into a human being. If the fetus has a 25% chance of surviving outside the womb, is that truly at the point of viability? It's a tricky question, so the Supreme Court just made an arbitrary distinction - which really should have been the job of the legislature rather than the judiciary (if they could get their heads out of their asses). There is also the (stated) problem that it can be difficult to know when exactly a child was conceived. And further to that, there is another problem with viability; as time goes on, and technology gets better, the amount of time between conception and viability continually decreases. With IVF, we're at the point where we can "conceive" outside of the body, and it's not so far fetched that in another fifty years we'll be at the point where it's technically possible to remove an embryo or fetus at any stage of pregnancy and keep it alive.

Here's one of the other things that I don't like about Roe v Wade; it fails to address a couple of the criticisms. The Supreme Court just sort of side-steps the whole issue of when "life begins" by saying that since no one else can seem to come to a conclusion, they don't have to. The counter to this is the quite logical argument that if we're balancing prenatal life against privacy (as Roe says), and we don't know what the effect on or importance of prenatal life is, then we should err on the side of life - murder being a much graver issue than restriction. This could have been nullified, or at least partially nullified, by trying to bring some evidence against these notions of where life "begins", or countering the whole concept of there being a time when life begins.

The Supreme Court also ignores evolving understanding of embryology that (in part) led to this divergence of opinion. Part of the reason that the Romans believed as they did is that they had an incomplete understanding of what was really going on. They didn't know anything about cells, let alone DNA, sperm, or eggs. So giving such weight to prior precedent, when it was founded on false premises, seems foolish. (If I remember correctly, the Romans believed that the man's ejaculate was like a seed that grew in the woman's menstrual blood, and the soul was placed inside at some point after the body was built.)

Regardless, I agree with the decision, I just feel that it could have more fully addressed a few things.

The Good Stuff:
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life.

No comments: