It is a grim reminder of the situation in which the US Supreme Court finds itself that one of its members, Judge Samuel Alito, has reportedly gone into hiding after pro-abortion activists staged a rally outside his home, protesting at the opinion he drafted which overthrew the constitutional basis for a universal right to abortion in the US. Two other Supreme Court judges were also targeted by activists, after the GPS co-ordinates of their homes were publicised by pro-choice groups. The final judgment will be issued this month or next; it is to be hoped that, before that happens, the campaign against judges critical of Roe v Wade does not take an even uglier turn.
Justice Alito had written the draft judg-ment on whether a law passed by the Mississippi legislature banning abortion of a foetus after 15 weeks’ gestation was contrary to Roe v Wade; if it was, the Court was told, then the 1973 ruling that American women have a constitutional right to abortion could not stand. The judgment was leaked last month, probably by one of the clerks working for the Court, an unprecedented move. The original text of Roe v Wade was also leaked but only a few hours before publication; this leak, well in advance of the final judgment, seems designed to bring maximum pressure to bear on the members of the Court.
Judge Alito was representing the majority view of his colleagues on whether Roe v Wade, and the subsequent 1992 judgment on its validity, known as Casey, should stand. In fact, the only case at issue was the earlier 1973 ruling, since the Casey ruling was simply based on a principle called stare decisis, that the Court should in general uphold the rulings of its predecessors. And on this Judge Alito’s pronouncement was devastat-ingly clear: “Roe was egregiously wrong from the start.”
It is this verdict that has aroused the fury of pro-choice activists and has been condemned by the President for potentially jeopardising other rights. But it’s important to be clear about what would happen were the draft ruling to be followed in the Court’s final verdict. It would return the decision on whether abortion should be legal and if so, in what circumstances, to individual states. As Judge Alito pointed out, this could mean that some states enact legislation more liberal than the Roe provisions, though half of states are likely to opt for more restrictive interpretations. Americans would no longer be able to claim that their right to an abortion is underpinned by the US constitution. Under the 1973 ruling, this allowed for abortion up to the point where the foetus is viable outside the womb. At issue is a law passed by the Mississippi legislature which would allow abortion of a foetus up to 15 weeks’ gestation.
What was striking about the opinion was its clarity. It did not in itself take a view on abortion. It did however make clear that Roe was not grounded in the US constitution. As Judge Alito witheringly observed, the ruling sought to locate the right in four or five different articles in the constitution or in the 14th amendment (which prohibited states from depriving a US citizen of life, liberty or property without due process of law). Yet when that amendment was enacted, the great majority, three-quarters, of US states had laws against abortion.
He also, devastatingly, quoted from the Mississippi law which specified the attributes of a foetus during gestation before 15 weeks: at five or six weeks, the “unborn human being’s heart begins beating”; at 8 weeks, the “unborn human being begins to move in the womb”; at 9 weeks “all basic physiological functions are present”; at 10 weeks, “vital organs begin to function”; at 12 weeks, the “unborn human being” has “taken on the human form in all relevant respects”. There is little real disagreement with these observable physical facts, but as they stand they constitute a clear underpinning of the case that a foetus can be considered a human being, one in the process of development and growth.
Obviously, Justice Alito’s summary is based on a reading of the constitution in terms of case law and common law relevant to the thinking of US legislators. He notes that in the earliest cases in English law, the law took a particularly stern view of the abortion of a foetus after quickening, which most commentators considered to be when the mother is aware of the presence of the child, though others take the view that “quick” in this context simply means “alive” as in the creed where we talk of “the quick and the dead”. In any event, there is no suggestion that abortion before this point was approved of. Later, as medical knowledge of the process of gestation improved, the distinction based on quickening was disregarded.
So, where does this leave Christians, most of whom will plainly welcome the prospect that the constitutional underpinning for abortion will be done away with? The ruling obviously makes no reference to God or to religion. What it should do is give them the opportunity to assert that objections to abortion are based on a regard for pre-natal human life which anyone can share, including people who are neither Christian nor in any sense religious.
Indeed, most medieval Catholics would have assumed, with Aristotle, that the humanity of the unborn human being only came about gradually, and that the foetus went through pre-human stages of gestation before finally arriving at full human status. That was understandable, given ignorance of how a foetus develops. Indeed, for many centuries Christians assumed that the soul entered the body at 40 days’ gestation in the case of male foetuses; 90 in the case of females (that genuinely was discriminatory).
But it is pro-choice advocates who now seem at odds with the science in their understanding of pre-natal development. It is they who adopt viability as a criterion for abortion limits, though viability, the capacity to survive outside the womb, is a crude way of deciding on the human status of a foetus. Rather, it is the objective, modern scientific knowledge of gestation as a continuum from conception until birth which enables pro-life advocates to assert that a pre-natal human being has human characteristics long before he or she reaches the point of viability. And this is a view which those who are not religious June take on exactly the same grounds as Christians.
It is an important aspect of the pro-choice caricature of the anti-abortion case that pro-lifers are religious fanatics, who seek to impose their religious mindset on people who think differently, particularly women. Jennifer L Holland, a history professor at Oklahoma University, says in her book, Tiny You, an account of the anti-abortion movement which she summarised in the Sunday Times, that “groups of religious people, almost all of whom were white Catholics, tried to stop lawmakers from acceding to the [abortion] reformers’ demands. Activists urged their congregations to get involved … While these activists were all religious, they did not say so in public. Americans in the 1960s were sceptical of religious movements imposing their minority view on the majority. Worried that anti-Catholicism would limit their appeal, they used non-religious arguments to make their case: first, in terms of biology, discussing fingers and toes, chromosomes and heartbeats. They spoke in the language of civil and human rights…”
This is almost the reverse of what is actually the case, which is that the fundamental facts of biology, revealed by our intimate knowledge of gestation, underline the humanity of the pre-natal individual. The consequence of this is that the foetus is deserving of at least some protection under the law – though some states June, for practical reasons, allow for early abortions to discourage illegal ones. It is not Christians who are being emotive in talking of a foetus in terms of fingers and toes. Prenatal scans do that.
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