Abortion Evolution: How Roe v. Wade Has Come to Support a Pro-life & Pro-choice Position

• Publication year: 2022

53 Creighton L. Rev. 157. ABORTION EVOLUTION: HOW ROE V. WADE HAS COME TO SUPPORT A PRO-LIFE & PRO-CHOICE POSITION

ABORTION EVOLUTION: HOW ROE V. WADE HAS COME TO SUPPORT A PRO-LIFE & PRO-CHOICE POSITION

JONATHAN ENGLISH ^[*]

I. WHAT ROE DECIDED

In 1973, facing a lack of consensus on when human life begins, the United States Supreme Court decided in Roe v. Wade ^[1] that before viability, where there is a right to privacy for the woman on one side, and there is no established right to life on the other side, the woman's right to privacy and abortion-must be protected. ^[2] Before viability, the woman's choice controls. ^[3]

Decades after the decision, fixed abortion rights and Roe v. Wade now seem nearly synonymous. However, the truth is more nuanced. Attentive reading reveals conditionality and even latent humility within the decision which are seemingly forgotten.

The Court conceded that if the fetus is a person under the Fourteenth Amendment, there would be no right to obtain an abortion because the right to abortion would be superseded by the person's right to life. In the words of the Court, "[i]f this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." ^[4]

However, while the Court could not conclude that a fetus is a person under the Fourteenth Amendment, ^[5] the Court inserted a fascinating point, almost a disclaimer. The Court acknowledged that its opinion was the product of a specific moment in time, subject to possible "development" or evolution. The Court explained:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. ^[6]

In a fact- and time-sensitive move, the Court left open the possibility that if a sufficient consensus ^[7] about the beginning of human life emerged, the parameters of abortion rights would have to shift with this consensus to protect human life in the womb.

In 1992, the Supreme Court further developed this assessment of abortion law through its ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey. ^[8] The plurality opinion acknowledged that a "change in Roe's factual underpinning" ^[9] or a change in the "understanding of [the relevant] facts," ^[10] could render "[Roe v. Wade's] central holding obsolete." ^[11] However, the opinion concluded that neither of those changes had occurred. ^[12] In reaching this conclusion, the Court engaged in a very limited review, noting only the factual developments that "advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973 . . . and advances in neonatal care have advanced viability to a point somewhat earlier." ^[13] The Court thus reiterated the dependence of the parameters of abortion rights on factual development and our understanding of the relevant facts. Yet at the same time, the Court still held to the shifting moment of viability as the moment when the government may restrict (nontherapeutic) abortion. The unexplored developments in the decades since Roe and since Casey now merit attention.

Roe was decided in January 1973, almost five decades ago. Following the Court's reasoning, if greater consensus develops that human life begins by a certain point during pregnancy, the right to privacy and to abortion after that point would be curtailed by the rights of the new human life. Science and law have developed significantly since Roe. The question begged attention-how have science and law progressed in the past four and a half decades? I began exploring whether any greater consensus had developed since 1973 on the issue of when human life begins. The search proved surprisingly rewarding. The results merit attention.

To structure the analysis, this Article describes and explores support for the following positions: (1) the view that human life begins at conception; (2) the view that human life begins just after implantation; (3) the view that human life begins with the coming of the heartbeat; and (4) the view that human life begins when brain development has reached a critical point. The article addresses developments in state law, federal law, and international law. The article also notes scientific developments, including technological development of the sonogram, accepted definitions of death, and the debunking of a persistent scientific myth that has complicated embryological understanding.

Finally, noting the arbitrariness suggested by Justice Blackman in attributing significance to the moment of viability, ^[14] this Article applies the reasoning of Roe to the new factual and legal landscape. Up-to-date application of Roe's legal reasoning to current scientific knowledge and legal precedent yields a groundbreaking conclusion about abortion rights. We are failing in our fidelity to Roe. We are no longer abiding by the Supreme Court's reasoning in Roe.

II. SCIENCE AND LAW SINCE ROE

A. Four Positions on the Beginning of Human Life

To begin, we will explore developing support for four science related ^[15] positions on when (valuable/sacred/protectable) human life begins: a genetic view; an embryological or individuation view; a view based on the fetal heartbeat; and a neurological view (or views). ^[16] This Article addresses when people conclude morally or philosophically valuable, dignity-bearing, protectable human life begins, something along the lines of personhood. Questions regarding when philosophically defined life, or personhood, begins may be distinct from the question of when biologically defined human life begins. About the latter question, there is clear and overwhelming consensus among scientists that new individual biological human life begins upon fertilization. ^[17] In addressing the more difficult ethical/philosophical/legal question, the views are briefly described at the outset. Then we explore scientific and legal support for each view.

Under the genetic view, human life is understood to begin at fertilization or conception, the unification of the genetic material of the egg and the sperm. ^[18] The egg and the sperm each has half the genetic material that makes up a human being. Their unification at fertilization creates a new, unique (distinct from the mother and father), and complete human combination of genetic material that serves as the blueprint for development of the new, growing organism.

In the embryological (or individuation or implantation) view, human life is considered to begin around fourteen days after fertilization. By this time, the embryo is implanted in the uterus, gastrulation is occurring, and the "primitive streak" has formed, the beginning of the central nervous system. ^[19] At this point, the embryo generally can no longer split to form twins.

In another view, the beginning of the fetal heartbeat marks the compelling point of development, and death can be detected from this point. ^[20] The heart begins to beat regularly by week four or five of development. ^[21]

Finally, there are varying versions of the neurological view, in which the beginning of human life depends on brain development and activity. ^[22] According to the early neurological view, human life begins during week ^[23] six or by week seven or week eight ^[24] of development, when the early nervous system is in place, the brainstem is forming, electrical brainstem activity has been recorded, and spontaneous movement and reflexes to stimuli occur. ^[25] Brainstem activity is discernable by EEG at this point. ^[26] Another perspective suggests that the defining moment occurs at approximately week eighteen or nineteen, when the thalamus region of the brain is forming and unifying the nervous system ^[27] (possibly coinciding with pain sensation ^[28]). Another neurological perspective proposes that the defining moment occurs during week twenty-two or twenty-three because at this point brain activity shows up on an electroencephalogram (EEG) in sustained patterns like those of a mature human brain. ^[29]

1. Genetic View

From a genetic standpoint, at all points after conception the fertilized embryo is alive, is human, and is its own organism, genetically distinct from the mother and father. ^[30] Through the process of conception or fertilization, the embryo inherits twenty-three chromosomes from the mother and twenty-three chromosomes from the father, creating a genetically unique new human composition. Further, the new human organism will naturally develop into a mature member of the species, barring abnormal conditions. Therefore, the genetic view holds that a new human life exists - a life valuable and worthy of protection.

a. The Unborn Victims of Violence Act and Fetal Homicide Laws

Significantly, United States law now states that human life begins at conception, or at least by implantation, depending on how the law is interpreted. The Unborn Victims of Violence Act of 2004 ("UVVA" or "Laci and Connor's Law") ^[31] imposes criminal penalties on anyone convicted of causing the death of, or bodily injury to, an unborn child "at any stage of development" in the course of committing any of over sixty enumerated federal crimes. ^[32] The...