This summer, President Donald J. Trump announced Brett Kavanaugh as his Supreme Court nominee. Before that, in the spring of 2017, Neil Gorsuch was confirmed as a Supreme Court judge. These nominations were highly significant, as they have the potential to shape U.S. policy for years to come. Specifically, these newer, more activist judges may be less likely to adhere to the doctrine of stare decisis, or following legal precedents, than prior Court appointees. The case South Dakota vs. Wayfair Inc. is an example in which the current Supreme Court abandoned well-established precedent that required a business to be physically present in a state before it can be forced to collect tax there.

Fueled by polarizing cries of “Overturn Roe”, state governments will undoubtedly view the Court’s current composition as an opportunity to test the limits of Roe by adopting laws that strictly limit a woman’s access to abortions. Until then, it’s important to reflect carefully not only on your own opinion, but also the facts that support the opposing side. With that said, during this edition of Turncoat I will be arguing a sectarian, pro-life point of view—that abortions infringe on the constitutional rights of the unborn child. Please enjoy.

In 1973, the Supreme Court ruled in the historic case known as Roe v. Wade that it was unconstitutional for states to unduly restrict access to abortions. The case was centered around an anonymous Texan woman given the name Jane Roe, who brought federal action against the district attorney of Dallas. Norma McCorvey, the woman behind “Jane Roe,” asserted that it was a women’s right to abortion at any time during the pregnancy. While the Court did not agree with that specific position, it did rule that a woman’s right to privacy was infringed by Texas’ regulation of abortion.  

Specifically, while the Court ruled that a woman’s right to choose an abortion was protected by the Constitution, it also recognized the competing state interests of protecting a woman’s health and the potentiality of human life.  The Court effectively established a balancing test that weighed the privacy interests of the mother against the interests of the state. In doing so, the Court leveraged the trimester framework of pregnancy, establishing that during the first trimester, the decision to abort should be left exclusively to the mother; during the second trimester, the state could regulate abortion only to protect the mother’s health; and during the third trimester, states could prohibit abortion except to protect the life of the mother.   

The fundamental problem with the Roe decision is the right of privacy concept that serves as its basis. The right of privacy, in the context of contraceptives, was originally declared in Griswold v. Connecticut, and was almost entirely read into the Constitution. The Court at the time claimed that there were “penumbras” within the Bill of Rights and within the 14th Amendment—regarding due process—that established a right of privacy. To be clear, there is no right of privacy explicitly stated within the Constitution. That being said, Roe v. Wade cannot be wholly overturned based on the dubious nature of its origin. Instead, at a minimum, abortion should be restricted following the Roe precedent.

As I mentioned previously, the Roe decision did not legalize abortion on at any time during a pregnancy. Instead, Roe legalized abortion prior to the point of viability of a fetus—meaning that the child can survive on its own out of the womb, which occurs during the second trimester. Pro-choice proponents claim that restricting access to abortions earlier than this point is tantamount to restricting a female’s ability to control her own body, as the fetus is an entirely dependent extension of the mother and thus not deserving of separate rights and protections. This logic has actually backfired on the pro-choice movement, as medical advancements have decreased the amount of time that a fetus needs to become viable outside of the womb. At the time of Roe, it was thought that a fetus could only survive on its own from about 24 to 28 weeks into the pregnancy. However, over the past years, with the aid of modern medicine, children can be viable as early as 20 weeks after inception. By shortening the time within which a pregnancy can be terminated, lives are saved and the Roe decision is still legally upheld.

Ideally, however, the restrictions on abortions should not stop there. Instead of a “point of viability”, the justice system needs to allocate rights based on the potentiality for life, which, of course, starts at conception. Traditional contraceptives like condoms are different from abortions in this regard.  Where a condom prevents conception to begin with, an abortion ends the potential life—what might have been. Excluding extenuating circumstances like rape, incest, and danger to the mother, abortions eliminate a fetus’s chances to live. Luckily, new laws have attempted to change this. Iowa’s “Fetal Heartbeat” legislation proposed a ban on abortions once the child’s heartbeat can be heard on ultrasound, normally occurring around 6 weeks into pregnancy. Although this law was blocked by a court in Iowa, such legislation shows willingness to protect the potential of life on a national scale- and offers the current Court an opportunity to rethink Roe.

In the end, abortion is a question of women’s choice. It’s a question of a woman’s ability to make decisions and control her body. Like any other American, women have that choice. However, the rights of a woman do not take precedence over the rights of another. America is based on equality and justice. To take the life of a child is to break one of the fundamental principles our country is based on: equal protection under the law.