Roe v. Wade was always a ticking time bomb, and although it’s had a very long fuse, it’s about to go off.
No, I’m not talking about the prospect of a conservative SCOTUS majority overturning the case. I’m talking about the natural outcome of the case itself.
Two major features characterized the legal argument of the majority in Roe v. Wade. First was the idea that privacy was an implied right under the US Constitution which protected women from the intrusion of government. Second, it determined that the “viability” of the fetus was the dividing line between the woman’s private interest before viability, and the state’s interest after.
Of course, there were two risky implications in using the idea of “viability.” First, determining when was “before” and when was “after” might prove to be difficult. And in fact the court chose an arbitrary method: it divided pregnancy into trimesters, and determined that the first was “before,” the third trimester was “after,” and the second trimester was someplace in between.
The second risk is that the very idea of “viability” was, in reality, a sliding scale, a moving target. The court decided Roe v Wade in 1973, when fetuses rarely survived outside a mother until the third trimester--that is, after 24 weeks. A fetus born prematurely at six months almost surely died.
As time passed, however, and medical technology and prenatal care evolved, early births received better and better treatment, and premature babies survived at younger and younger ages. By the 21st century, it was common for babies born at 24 weeks and even younger--that is, in the second trimester--to survive. Babies born at 24 weeks now have a 40% chance of survival, and babies born at 23 weeks still have a 17% chance of survival. This represents a remarkable shift in “viability” in the 44 years since Roe v. Wade.
But now comes a much more dramatic development, with the recent report of the invention of an artificial womb. (https://www.theatlantic.com/health/archive/2017/04/preemies-floating-in-fluid-filled-bags/524181/) Until now, the device has been used only with baby lambs, but the inventors reported it would soon be available to assist “premature babies.”
To be this seems to be a case of under-reporting. For if we’re really going to have an artificial womb, the implications go far beyond what we now think of as premature babies. Such a device potentially offers the prospect of bringing fetuses to term in pregnancies much shorter than the current “viability” limit:
Within a decade or so, babies born between 23 and 25 weeks might not be thrust into the harsh outside world at all. Instead, they may be immediately plunged into a special bag filled with lab-made amniotic fluid, designed to help them gestate for another month inside an artificial womb.
--the Atlantic April 25, 2017
The current device is quite primitive, but will surely evolve. Dear reader, imagine the practical impact of a device that could, for example, offer survivability to a fetus in mid-or even early second trimester.
This impact was explored long ago in a hypothetical discussion that was part of a popular Boston TV show called “Miller’s Court.”
Arthur Miller, a Harvard law professor (now at NYU law school), used the program from 1979-1988 to discuss legal issues in a quasi-courtroom forum, usually cross examining several panelists at once.
On the occasion I have in mind, the issue under discussion was abortion. The panel included then- Congressman Barney Frank and feminist writer Gloria Steinem.
Miller posed this hypothetical question: suppose that an artificial womb could be used to bring a fetus to term AFTER the pregnancy was terminated by abortion. Would that mean that the mother would lose her legal standing, and the state would gain a legal interest in preserving the child’s life? Both Barney Frank and Gloria Steinem agreed that to be the case. They said yes: at that point the state could act to save the child, and the mother’s right to decide would be gone (presumably because her privacy right had ended).
Two noteworthy points here: first, Frank and Steinem were answering a really hypothetical question, which at the time (the mid-1980s) had no practical importance. Second, it was nonetheless stunning to hear two such prominent pro-choice advocates take the position they took. In effect, they were limiting the women’s control over the effects of her choice, once the fetus was outside her body.
You see, this discussion revealed a generally overlooked element about abortion itself. It demonstrated that an abortion is really two events at once: it is the termination of a pregnancy, and it is the death of a fetus. Generally, these two events are inevitably connected; one cannot choose one without the other. And so most discussions about abortion jumble the two together, with pro-lifers opposing the killing, and pro-choicers defending the woman’s right to end her pregnancy. In such discussions, the two sides inevitably talk past each other--which is exactly what has been happening for more than 40 years.
But Miller’s hypothesis opens the possibility of speaking of these two elements separately. In other words, what if women could terminate a pregnancy without killing the child? Then what?
What Frank and Steinem were essentially agreeing to was the idea that, if it were possible to terminate pregnancy without causing a death, then the resulting life would become a matter, not of the mother’s privacy, but a matter of public interest. At that point, the state could take over the attempt to save the child.
But if Miller’s hypothesis highlighted the basic fact that abortion does 2 things (terminates a pregnancy, but also kills the fetus)--now it seems the hypothesis itself may soon become real. For now we DO have an artificial womb, and now it may soon be possible to terminate pregnancy yet save the fetus!
What this means that the artificial womb completely explodes the notion of “viability” built into Roe v. Wade.
It opens the prospect that women can retain the right to choose an abortion, but lose the right to kill their fetus. Since that latter right depends on the location of the fetus within the woman’s body, the artificial womb opens up the entirely new horizon of allowing the fetus to survive outside woman’s body, where a mother no longer has legal jurisdiction.
Depending on how effective the artificial womb is, and how quickly it evolves, this could mean that many abortion cases which are currently treated as private under Roe v. Wade could become legally controversial under the same case. For example, what if a woman’s partner (or mother or father or sister or brother) sues to save the child using an artificial womb? What if a state attorney general sues to enjoin any pregnancy longer than, say 12 weeks, to be subject to state review and intervention?
None of this would require a reversal of Roe v. Wade. Theoretically, it could lead to cases where the woman has her abortion but the child survives.
Not only would this prevent many deaths, but it would also pose a new challenge for both the pro life and pro choice communities. For pro-lifers, it would mean reconsidering their attitude to abortion itself, recognizing a woman’s right to terminate the pregnancy as long as someone else takes responsibility for saving the child. For pro-choices, it would pose a difficult challenge: acknowledging that a woman’s right to choose extends only to the termination of pregnancy, not to the fate of the child produced by the pregnancy. In individual cases, this could mean that a woman might choose to abort with the knowledge that her child survive, and grow, and live in the same world she does, without her consent, and without any legal recourse. In other words, this could mean that choosing abortion means relinquishing any voice over the future life of one’s own child.
None of this represents a change in abortion itself. None of this represents a change in Roe v. Wade. This would simply be a long-term final outcome of a time-bomb decision that has been ticking away for more than 40 years. And it would finally bring to surface the long overlooked reality that abortion is two things at once, and that each side of this long and anguished debate has been arguing about only one of them, and ignoring the other.
Would this mean the end of the debate? I suspect not. Would it make people happier? I suspect neither side would be fully satisfied, since one side would continue to object to the first trimester abortions, and the other side would feel that somehow a woman’s freedom was being curtailed.
But even if the debate continued and both sides remain unhappy, one thing is sure: Sunday, somewhere, each of us might well meet someone who owes their life to an artificial womb, and who can say to us “I am an abortion survivor.”
© Bernard F. Swain PhD 2017