{"id":113384,"date":"2022-06-27T09:00:58","date_gmt":"2022-06-27T13:00:58","guid":{"rendered":"http:\/\/kendallharmon.net\/?p=113384"},"modified":"2022-06-27T16:57:58","modified_gmt":"2022-06-27T20:57:58","slug":"a-look-back-to-1985-george-scialabba-the-trouble-with-roe-v-wade","status":"publish","type":"post","link":"https:\/\/kendallharmon.net\/?p=113384","title":{"rendered":"A look back to 1985–George Scialabba: The Trouble with Roe v. Wade"},"content":{"rendered":"

From left to right, not many people have had a kind word for Roe v. Wade, the 1973 Supreme Court decision that partially legalized abortion. Radical feminist Catharine MacKinnon called it \u201ca study in male ideology\u201d that \u201creaffirms what the feminist critique of sexuality criticizes: the public\/private split.\u201d Michael Kinsley, editor of \u201cThe New Republic\u201d, called it \u201cone of the worst things that ever happened to American liberalism\u201d and warned that \u201cthere is a time bomb ticking away\u201d inside it. Conservatives have, of course, registered disapproval often and loudly (sometimes explosively).<\/p>\n

Roe v. Wade struck down a Texas law that made abortion a crime except when \u201cprocured or attempted by medical advice for the purpose of saving the life of the mother.\u201d The court\u2019s logic was not transparent (Kinsley calls it \u201ca mess,\u201d and many agree), but was essentially this: (1) A woman\u2019s right to make reproductive decisions is part of a \u201cright of privacy\u201d implicit in the 14th Amendment to the constitution, which says that government may not \u201cdeprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.\u201d (2) A fetus does not have a \u201cright to life\u201d or to \u201cequal protection\u201d because, according to the court, \u201cthe word \u2018person,\u2019 as used in the Fourteenth Amendment, does not include the unborn.\u201d (3) Constitutionally guaranteed rights may only be infringed when a \u201ccompelling\u201d societal interest is at stake. In the case of abortion, society has two legitimate interests: to protect the health of pregnant women and to protect \u201cpotential life.\u201d But these interests are not \u201ccompelling\u201d from the moment of conception. The former becomes compelling only when the medical risks of abortion become comparable to those of normal childbirth, i.e. (as of 1983) during the second trimester. The latter becomes compelling only when the fetus becomes \u201cviable,\u201d or \u201ccapable of meaningful life outside the mother\u2019s womb,\u201d i.e. (as of 1973) during the third trimester. (4) What follows from all this, the court said, is that the state may regulate abortion during the second trimester, but only \u201cin ways that are reasonably related to maternal health,\u201d and may prohibit abortion during the third trimester \u201cexcept where it is necessary . . . for the preservation of the life or health of the mother.\u201d<\/p>\n

Roe raised a host of questions, of two kinds. First: is the court\u2019s reasoning persuasive? Does the constitution really recognize a \u201cright of privacy,\u201d even though it\u2019s not mentioned anywhere in the text? Why doesn\u2019t the 14th Amendment apply to fetuses, even though they are not mentioned anywhere in the text? What is \u201cpotential\u201d life? Why does the state have a \u201ccompelling interest\u201d in protecting it, even at the expense of actual persons? And why does that interest become compelling at viability rather than at conception or birth?<\/p><\/blockquote>\n

Read it all<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

From left to right, not many people have had a kind word for Roe v. Wade, the 1973 Supreme Court decision that partially legalized abortion. Radical feminist Catharine MacKinnon called it \u201ca study in male ideology\u201d that \u201creaffirms what the…<\/span><\/p>\n

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