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
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