Landmark Abortion Cases' Bad Reasoning

Stephen Kershnar

Overturning Landmark Abortion Cases

Dunkirk-Fredonia Observer

March 4, 2019

It is widely expected that the Supreme Court will revisit its landmark abortion cases: Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992). 

Please note this column is informed by ideas from Rice University’s Baruch Brody, Quinnipiac Law School’s Stephen Gilles, and Oxford University’s Jeff McMahan.

In Planned Parenthood, Justice O’Connor put forth two Constitutional rules on abortion that focus on viability. A fetus is viable when it is capable of surviving outside the woman. The first rule is that before viability, a state may not unduly interfere with a woman getting an abortion. The state unduly interferes with abortion when its law or regulation is intended to or has the effect of making abortions more difficult to get. She gave three reasons for the focus on viability: precedent, workability, and consent. On precedent, O’Connor noted that Roe had twice been reaffirmed. On workability, she reasoned that viability sets a clear line for women and the state. On consent, she asserted, a woman who fails to act before viability has consented to the State’s intervening on behalf of the fetus.

Second, O’Connor found the State could ban abortion after viability so long as it had exceptions for women’s life and health. O’Connor claimed that this post-viability rule reconciles woman’s liberty with the State’s interest in the women’s and fetus’s lives, although she didn’t explain why it does so.  

The problem with these two rules and the reasoning behind them is that they aren’t in the Constitution. Nor are they philosophically justified. Instead, the rules were pulled out of thin air and are, at best, an attempt to find a politically acceptable middle ground.

The Constitution’s text does not mention viability. Consider, for example, the Due Process and Equal Protection clauses. The Due Process clause mentions people born in the United States, but this is, at best, a sufficient condition to be a citizen and not relevant to abortion. Those who wrote and ratified the Constitution did not intend that a woman’s right to an abortion to cease at viability. This is true regardless of whether they thought women had such a right.   

O’Connor’s reasoning is abysmal. On an issue as momentous as this, the fact that Roe had been reaffirmed twice is beside the point. In addressing people’s fundamental rights, the Constitution does not mention workability whether explicitly or implicitly. Even if workability were relevant, and it’s not, viability is less workable than various bright line rules. Consider, for example, the end of the first trimester. The consent argument also fails. The Constitution doesn’t mention it in this context. If it were relevant, then, again, a bright-line date (for example, ten weeks after conception) is a better way to put women on notice that if they want to get an abortion they have to do it by that date. In addition, viability will occur earlier and earlier in pregnancy as neonatal technology improves, thereby making viability less helpful for giving women a deadline for abortion.    

Viability also sits uneasily with other areas of the law. Ten states consider a stranger’s killing a pre-viable fetus to be homicide. This leads to an oddity in that some people can kill pre-viable fetuses with impunity (for example, women and physicians) while others cannot.     

As a biological matter, viability is insignificant. The fetus is a distinct organism from the woman. This can be seen in its separate genetic makeup, metabolic processes, and boundaries. Also, a fetus’ biological dependence from the mother does not change at viability. Even if the fetus is viable, if it is not removed it still depends on the woman because it does not breathe air, ingest food, or maintain its body temperature.  

Most important, as a philosophical matter, viability is irrelevant. A person comes into existence when his brain comes into existence or, perhaps, when his brain first has a relevant capacity. Consider, for example, the capacity to feel pleasure and pain, be self-aware, or reason. These capacities likely begin after viability.

The irrelevance of viability can be seen in that a person exists only when his brain exists (or, perhaps, when his brain has a relevant capacity). This explains why a body with two heads would be considered two people. A real world example that is something like this can be seen in the Hensel twins: Abby and Brittany.

The notion that people begin to exist when their brains exist explains why if one person’s brain were to be put in a second person’s body and the second person’s brain were to be put in the first person’s body, intuitively, each person would be located where his brain is located rather than where his body is located. Thus, if Obama’s brain were put in Trump’s body and Trump’s brain were put in Obama’s body, Obama would be in Trump’s body and Trump would be in Obama’s body.

The notion that a person is her brain (or, perhaps, part of it) can also be seen in the intuition that a person ceases to exist when the part of her brain where consciousness occurs dissolves away. Consider, for example, Terry Schiavo. A fetus gets a brain before viability and a functioning one after viability. Thus, viability is irrelevant.  

Viability should be irrelevant to the Constitutional status of abortion whether one considers the Constitution’s text or the intentions of those who wrote and ratified it. It is also irrelevant when we consider biology and philosophy. It is not even a practical standard or one that puts a woman on notice.

The Court will have to decide that the Constitution is silent on abortion or, instead, discover when it is that a person comes into existence. If the Constitution is silent on it, then it is for the states and people to decide. If the Court tries to discover when a person comes into existence, it will have to discover when a fetus gets a brain or, perhaps, a brain with the relevant capacity. No matter what it decides, Roe and Planned Parenthood should be overturned.