Mississippi’s law banning abortion at 15 weeks made it up to the Supreme Court this week in an attempt to address a fundamental issue present since Roe was decided in 1972:
At what point during pregnancy should abortion be regulated or outlawed and can one even answer that without some type of arbitrary reasoning?
With the Roe decision in 1972, the all-male justices could not agree on which stage abortion should be regulated and ultimately ended up with a trimester approach, specifically the end of the second trimester. The Washington Post in 1989 published the Abortion Papers (see here) and in them, it captured much of the internal deliberation that went into this decision. Justice Harry Blackmun, the writer of the majority opinion, acknowledged the use of trimesters was “arbitrary” but no less arbitrary than “quickening or viability.”
Fast forward to 1992 and the Casey ruling where the Court acknowledged and abandoned the arbitrary “trimester” approach of Roe and landed on an even more arbitrary regulation of barring “undue burdens” before “fetal viability”. Now, as our technology has exploded so has our ability to save children born prematurely (see here about a baby surviving after being born at 21 weeks). And as technology continues to explode, so will our ability to save premature babies, which immediately creates a dilemma for Casey, Roe, and pretty much all abortion cases decided up to this point. When is viability?
When is a Human Being Not A Right-Bearing Being?
There one came to the edge of the argument that should clear heads and dissolve perplexities on both sides: It cannot be tenable to say that any human being loses his claim to the protection of the law, or his standing as a rights-bearing being, when he suddenly becomes weak and infirm and needs the help of others. To deny that proposition is to back into nothing less than the Rule of the Strong or Might Makes Right. That argument runs back to texts old and widely taught, from classic philosophy and the Bible. It is unthinkable that the lawyers and judges on either side have never heard that classic teaching. The question then is why these accomplished people on either side feel constrained not to invoke this common-sense axiom of moral reasoning. First Things
The main issue at the center of the Mississippi law is the barring of abortions at 15 weeks. Previous cases decided that a baby was viable around 24 weeks but the Mississippi obviously puts it much sooner than that. But herein lies the problem, Mississippi’s law deciding 15 weeks is just as arbitrary as 24 weeks? Hence you had a good chunk of the arguments focusing on this - the arbitrary nature of any restrictions. Again, First Things captures the dilemma:
As Justice Alito said, if a woman has a right to rid herself of the pregnancy she believes to be encumbering her life, why would it make a difference if the child in the womb were larger and stronger? And on the other side, if the law protects human life, why should it not also protect the small life in the womb that has never been anything less than human from its first moments?
The pro-abortion side is fundamentally arguing for unrestricted abortion up till the point of birth while the pro-life side seemed to be creating an arbitrary cut-off of 15 weeks to take an ax to the arbitrary cut-offs in both Casey and Roe. If the Mississippi law is struck down because it arbitrarily set a date of 15 weeks, then so does Casey, and so does Roe. The goal is and always will be to overturn Roe and the Mississippi case is probably the first earnest attempt to do just that.
Justice Sotomayor and Systemic Evil
For me personally, the most baffling line of questioning came from Justice Sotomayor. Liberal publication Mother Jones framed it as a *yaaaassss Kween* moment (see here), but anyone adept in philosophy, or political philosophy for that matter, will see the massive holes in logic present throughout her questions.
First, Justice Sotomayor argued that Mississippi’s law was political and not an examination of case law. Viability has been stare decisis for over 30 years now so it’s not possible for Mississippi to be doing this for any other reason but political purposes. She then ironically concluded:
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Second, Justice Sotomayor argued that defining when life begins is fundamentally a religious question and not within the purviews of the court to decide.
Finally, Justice Sotomayor bizarrely stated: "Evidence of fetal pain is not proof of life." She went on to explain involuntary muscle reflexes after death as proof of this point.
On the first point, Justice Sotomayor is correct to an extent. The Mississippi law is political (although not in the way she’s using the word) because the original decisions were political. There is no fundamental right to privacy in the Constitution and the decision of Roe is continuing to be challenged as legitimate case law because of how badly written it is (see here). The “stench” the Justice referenced is already over the court and it will continue to be there until Roe is overturned and the proper constitutional process can be allowed to happen (which doesn’t immediately outlaw abortion by the way).
The Justice’s second and third points are perhaps the most baffling arguments. When life begins is not a fundamentally religious question? It’s clearly a scientific one and the science is almost unanimously clear:
Life begins at conception (here, here, and many more).
If life begins at conception then Roe created a system that ends a life. The argument then follows like this:
Premise 1: It is wrong to intentionally kill an innocent human being.
Premise 2: Abortion intentionally kills an innocent human being. Therefore,
Conclusion: Abortion is morally wrong.
Justice Sotomayor and the other justices are arguing to uphold a morally abhorrent system that kills an innocent human being and when faced with the infant’s pain dismissed it callously as involuntarily muscle reflexes. Ironically, after death. This doesn’t even account for the systemic racism dynamic present in the pro-choice argument presented to the court. It was a disastrous mess.
What Now?
I’ve listened to a lot of court watchers on this case and many seem to think that Casey, at least, is in trouble. Some even see Roe on the table. I pray the latter but I have my doubts! However, from my own untaught ears, I couldn’t help but feel like to argue the case for the Mississippi law one had to argue against it? At least that’s the impression I had from listening to the 2 hours. I think the Mississippi law is a fascinating full frontal assault against the evil abortion regime and it is clear from a lot of left-leaning publications and Twitter that they are nervous about their sacrament.
What I do know is that any decision to regulate abortion will be met with swift, maybe even violent, action on the pro-choice side. And I think that’s my biggest fear about the state of our discussion on this issue. We already saw people justifying riots, looting, and even murder for the larger cause of Black Lives Matter how much more for the sacrament of abortion?