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Human Exceptionalism

Life and dignity with Wesley J. Smith.

A Reverse Reversal of Roe v. Wade?



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Nancy Pelosi calling late term abortion “sacred space” fits right into my bi-weekly First Things column, in which I point out that Roe v Wade could well be overturned from the pro abortion side to preclude any regulation at all.

I came to this insight listening to a panel of pro life lawyers discuss the current state of abortion jurisprudence. Roe and its progeny cases allow limited regulation and restrictions. But there is a strong undercurrent of anger at any legal inhibitions that make abortion more difficult to obtain. From my piece:

Almost as an aside, one of the seminar presenters noted the implacable opposition of Supreme Court Justice Ruth Bader Ginsburg to this limited right to regulate status quo. Ginsburg believes adamantly that women are denied “equal citizen stature” by boundaries placed around access to abortion. Not only that, but in an angry dissent to the 2007 Supreme Court ruling upholding the federal ban on partial birth abortion, she (joined by Justice Breyer among the current justices) railed against the majority allowing “moral concerns” to “override fundamental rights.” 
That sounded to me as advocacy for an unfettered right to abortion at any time and for any reason.

I interviewed an expert in this field, Clarke D. Forsythe of Americans United for Life, who confirmed that Ginsberg (and clearly Pelosi) would hold that view. I then recalled the accelerating drive in bioethics to install “personhood” in place of ”humanhood” as the morally relevant status for deserving a right to life:

Many powerful voices no longer consider “human life” to be a morally relevant category. For example, the mainstream bioethics movement argues that what matters morally isn’t being “human” but possessing sufficient mental capacities–as being self-aware–be considered a “person.” In this view, only persons have a right to life. Since a fetus does not possess personhood capacities at any time during gestation–contrary to Roe–the state has no interest in protecting fetal life even after viability.

I note that Roe was intended to end all debate over abortion in this country. That effort failed, but that remains the dream of the adamant pro abortion side. And I get into New York Governor Andrew Cuomo’s proposal to allow viable fetuses to be aborted to protect the “health” of the mother–which means almost anything in abortion jurisprudence. I conclude:

Finally, assume a United States Supreme Court in which Justices Clarence Thomas and/or Antonin Scalia have been replaced by Ginsburg-thinking replacements. A new 5-4 or 6-3 majority could then exist to make equal protection the primary pillar supporting the abortion license, perhaps also installing “personhood” in place of “humanhood” as the relevant legal standard for applying a right to life.

That would restore the law to the total license that Roe (when coupled with Doe v. Bolton) envisioned. I am not predicting that will happen. But it definitely could. All the talk about reversing Roe isn’t necessarily a one-way street.



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