Abortion and the Constitution (Update 2b)

• Author: Robert E. Rodes
• Pages: 14-15

Page 14

The usual rationales for abortion may be characterized as the "Blob Theory" and the "Limpet Theory." According to the Blob Theory, the unborn child is a blob of tissue, an excrescence on the body of a woman. Her decision to excise it is nobody's business but her own. According to the Limpet Theory, the unborn child is a human being, but one inexplicably parasitic on a woman, who should be able to shed the burden if she chooses. The state can appropriate people's resources for the sustenance of other people, but appropriating their bodies goes too far. The Limpet Theory, being less subject to empirical refutation, has gradually gained ground over the Blob Theory since the early 1990s.

The shift is hinted at in some of the language of Justices SANDRA DAY O'CONNOR, ANTHONY M. KENNEDY, and DAVID H. SOUTER in their joint opinion in PLANNED PARENTHOOD V. CASEY (1992). They occasionally speak of "the life of the unborn" instead of mere "potential life," and at one point they say that the state may inform a woman of the "consequences to the fetus" if she has an abortion. In the end, though, like Justice HARRY A. BLACKMUN in ROE V. WADE (1973), they fix "viability" (i.e., ability to survive outside the womb) as the point at which the state can allow the child's interest in remaining alive to outweigh the mother's interest in ending the pregnancy.

Although only three Justices adopted the joint opinion in its entirety, it has become the last word from the Supreme Court on abortion, because the other opinions cancel each other out. So the prevailing doctrine is that the state can require a woman to retain a child in her womb only if the life of the child does not depend on her doing so. Until viability the state can place no "undue burden" on a woman's exercise of her right to an abortion, whereas after viability any restraint is acceptable if it does not endanger the woman's life or health.

The devil, of course, is in the details. There is not space here to cover all the nuances of the subject?parental permission, waiting periods, informed consent, and so on?that Casey touched upon but mainly left loose to rattle around a judicial system where most judges think either that no burden on abortion is undue or that any burden is.

The most important decision since Casey is Women's Medical Professional Corporation v. Voinovich (1997), in which the U.S. Court of Appeals for the Sixth Circuit struck down Ohio's attempt to limit postviability...