When Does Life Begin?
When does life begin?
It is the kind of question you would expect to come up in a freshman philosophy class. Students would be expected to speculate about how to find meaning in one’s life. It would be all about embarking upon a quest for fulfillment as a human being. It would have little to do with the physical mechanics of birth. But that is the question that the current majority on the US Supreme Court (SCOUS) attempts to answer in their recent ruling in Dobbs v. Jackson Women’s Health Organization.
Despite the fact that all of us are there when it happens, humankind has been flummoxed forever by the mystery of when an individual’s life physically begins. No one, at least no one to my knowledge, has ever claimed to have any awareness of when his or her own life was launched.
The science of human birth is complex. In general, it is accepted that human life results from a multi-stage process initiated by sexual relations between a man and a woman and dependent upon the physical resources of the woman. All sexual relations between a man and a woman do not result in the initiation of such a process, nor are they generally intended to do so. Furthermore, the process may also be interrupted at several points by natural causes as well, i.e. miscarriages.
Some religious organizations avow that life begins at conception, the first stage in the process, even though at this point whatever exists has neither a form that resembles a human being, nor does it have a consciousness. These develop much later in the process and only with the resources provided by the mother. It appears that the SCOUS majority in Dobbs has accepted this definition of the beginning of life despite its conflict with reality.
The Dobbs opinion, authored by Justice Samuel Alito, is primarily an assault on two earlier SCOUS decisions that together had governed abortion law for nearly fifty years---Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Those decisions recognized a woman’s Constitutional right to choose to have an abortion and attempted to balance that right with the State’s interest in protecting the health of pregnant women and the “potentiality of human life” under development within the woman.
There is little respect for the woman’s right in the Dobbs opinion:
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely---the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
The quoted references are from a 1997 SCOUS decision, Washington v. Gluckberg, which defended Washington State’s prohibition against assisted suicide, an action that historically has rarely enjoyed broad acceptance in the United States. When Alito applies these standards to abortion, he give no weight to the fact, which he actually presents, that in the 18th century, abortion was legal prior to “quickening,” described as “the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.” This fact is confirmed in “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century,” a major study by Prof. Geoffrey R. Stone, of the University of Chicago Law School, a noted First Amendment scholar.
It is particularly noteworthy; since the law for which Mississippi sought approval did not ban abortion until after 15 weeks. And this is the point Chief Justice John Roberts made in his concurrence. Although he supported granting Mississippi’s request, in line with the court’s established practice not to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,” he did not support overruling Roe and Casey. In other words, he would have left intact a woman’s “right to choose to terminate a pregnancy.”
In his historical analysis of abortion in America, Alito also cites “a wave of statutory restrictions in the 1800s” that imposed criminal liability on those seeking to end pregnancies prematurely, suggesting this is evidence of abortion not having acceptance during this period. He fails to note the primary motivation for such activity---religion. According to Prof. Stone, this was the time of the Second Great Awakening, a religious revival that gripped the United States between the late 18th century and the mid-19th century and turned sex into not only a religious or moral issue, but also a political and legal battleground, America’s first culture wars. Using religious dogma to justify their decision apparently did not bother the SCOUS majority.
The Dobbs decision not only fuels our current cultural wars, but it will escalate them. Especially egregious is the open door the opinion offers to the individual states to regulate or prohibit abortion at any and all stages. The United States is one country. Article IV of the Constitution grants to all citizens “the Privileges and Immunities of Citizens in the several States.” This will likely not be the case for women in many states.
Beyond the Constitutional questions is the practicality of severely restricting abortion and morally enforcing such a rigid set of laws. Banning access to abortion even before a woman can know she is pregnant is certainly “cruel and unusual punishment.” The impact on marital relationships, on the mental health of mothers, on opportunities for accomplishment by women, all invite social turmoil.
Opponents of the Equal Rights Amendment argued that it was unnecessary since women enjoyed all appropriate rights under the existing document. The Dobbs decision has proven that to be wrong, delivering a severe blow to women in America. The people responsible for this court should be held accountable at the ballot box in November.
https://supreme.justia.com/cases/federal/us/597/19-1392/#tab-opinion-4600822
https://pulse.ncpolicywatch.org/2021/09/08/five-basic-facts-anti-abortion-activists-get-wrong/
https://www.oyez.org/cases/1971/70-18
https://www.oyez.org/cases/1991/91-744
https://supreme.justia.com/cases/federal/us/521/702/
https://www.nyjournalofbooks.com/book-review/sex-and-constitution