On Friday, Gizmodo published a piece by Kristen Brown entitled “How New Technology Could Threaten a Woman’s Right to Abortion.” From the title, one might suppose that some technological advancement promised further proof of the humanity of the unborn baby. After all, in just the past few months, scientists have shared some amazing discoveries: Unborn babies can recognize faces while still in the womb and also distinguish between people speaking different languages.
So what is this new technology that could threaten abortion “rights”? Proof positive that unborn babies feel pain? Nope. The menace: the burgeoning development of artificial wombs.
Paradoxically, back in April, when researchers first published the results of this promising research, Gizmodo ran a piece raving about the potential. Since then, though, it must have dawned on abortion-rights supporters that the advent of an artificial womb would destroy the “bodily integrity” pretense preached by pro-choice activists. And with other technological advances already offering a window to the womb — such as 5D ultrasounds — the Left, by necessity, has been clinging to the “my body, my choice” charade for some time.
But what if “my body” is no longer needed? That should be celebrated, shouldn’t it? Yet it isn’t. The artificial womb presents a peril — not a reprieve — to the pro-choice Left. Here’s how Brown put it in her piece:
The advent of such artificial womb technology highlights how fragile — and dated — much of the law surrounding the right to an abortion really is. . . . Developing technology also tests the rhetoric surrounding the right to choose. A woman’s right to control her own body is a common legal and ethical argument made in favor of abortion. Under that logic, though, the law could simply compel a woman to put her fetus into an external womb, giving her back control of her own body but still forcing her into parenthood.
Let that sink in for a moment: Abortion law is “fragile” and “dated” because, while an artificial womb would give a woman “control of her own body,” it could still force her into “parenthood.” Stripped of its niceties, what Brown wants is a constitutional right to a dead baby.
What Brown doesn’t realize, though, is that there is already a constitutional right to a dead baby because abortion jurisprudence, while definitely dated, is not fragile — it is extreme.
Brown’s conclusion that an artificial womb threatens abortion rights flows from the false premise that once an unborn baby can survive outside the mother’s womb, abortions are illegal in almost all circumstances. Here’s her summary of the law:
In 1992, Planned Parenthood vs. Casey reaffirmed that viability is key in defining a state’s power to regulate abortion. The number of weeks at which you can legally procure an abortion varies between 22 and 24 weeks by state. If a woman’s health is at risk, the state cannot enforce an abortion ban at any stage of development.
That last sentence is key: A state cannot ban abortion at any stage of development if a woman’s health is at risk. What Brown does not tell the reader, though, is that the Supreme Court has defined “health” so broadly that the exception swallows the rule.
In Doe v. Bolton, the companion case to Roe v. Wade, the Supreme Court explained that in determining whether an abortion is necessary to preserve the “health of the mother,” the physician’s “medical judgment may be exercised in light of all factors — physical, emotional, psychological, familial and the woman’s age — relevant to the wellbeing of the patient. All these factors may relate to health.” Thus, while Brown creates the impression that post-viability abortions are illegal except in those few rare cases where a women’s health is threatened, the law (and reality) says otherwise.
Brown is not alone in her portrayal of the “health” exception as a narrow and rarely used rationale for late-term abortions. Abortion-rights activists deploy this tactic regularly, demanding “health” exceptions to any abortion legislation, knowing that virtually anything can qualify as “health,” and then when pro-life politicians object, they are portrayed as anti-woman.
But at least Brown accurately identified the exception as one of “health.” That is more than can be said for I. Glenn Cohen, a professor at Harvard Law School, whose essay “Artificial Wombs and Abortion Rights” formed the basis of Friday’s Gizmodo piece. Here’s what he wrote for the Hastings Center:
In Planned Parenthood v. Casey, the U.S. Supreme Court reaffirmed viability as the defining line in the state’s power to regulate abortion. Except under special circumstances (such as when abortion is necessary to save the life of the mother), the state is free to completely prohibit abortion after the viability point, whereas it faces a more demanding test in imposing pre-viability restrictions.
It is inexcusable for a professor — at Harvard, no less! — to so blatantly misrepresent the law. A layman reading Professor Cohen’s essay would naturally believe that post-viability abortions are allowed in only the narrowest of circumstances, such as when necessary to save the life of the mother. To the contrary: Under Casey, a woman has a constitutional right to an abortion, post-viability, if the pregnancy endangers her health. And Doe teaches that health includes “physical, emotional, psychological, [and] familial” concerns.
They are not pro-choice — they are anti-life.
So then, fast-forward ten years and hypothesize an FDA-approved Bio-Womb and a woman, 20 weeks pregnant, who does not want a baby but claims she “just cannot live with the thought of giving her child up for adoption and never knowing if he is happy and healthy, or even alive.” Under now-controlling Supreme Court precedent, a doctor could decide in his “medical judgment” that an abortion is warranted because the woman’s emotional health is endangered. Sadly, that same medical judgment could justify an abortion today even if the woman is 34 weeks pregnant. The Bio-Womb might change the rhetoric, but it doesn’t change the legal analysis.
But for all of Professor Cohen’s jurisprudential dissembling, he is at least honest about the pro-choice argument in a world of artificial wombs:
Part of what makes all of this so hard is that, both legally and ethically . . . the abortion right has been most vigorously defended as a right not to be a gestational parent, not as a right not to be a legal or genetic parent. That is, the right enjoyed by women is a right to stop gestating, not a right to end the existence of the fetus. The artificial womb would allow women to exercise the first right without the second. Defending a right to abortion when transfer is possible would change the moral terrain. . . . “My body, my choice” would instead become a right to terminate the life of the fetus.
Once again, science is forcing abortion-rights activists to give truth to their lie: They are not pro-choice — they are anti-life.
— Margot Cleveland is an attorney, an adjunct professor at the University of Notre Dame, and a regular contributor to the Federalist.