Life, Politics and Alabama

Life, Politics and Alabama

I was wrong.  I thought that the pro-birth program to outlaw women’s choice to have abortions was a gradual one.  I thought that they were going to “chip away” at the right to choose, slowly convincing the Supreme Court to restrict the Roe v Wade decision. I thought the ultimate goal was to return the United States to a pre-1973 standing, when states would decide individually whether to restrict abortion, or ban it.

I was in good company in that thinking:  states like New York and Virginia had already altered their laws in anticipation of changes in the Court’s interpretation of the Roe case.  But the pro-birth supporters, the ones who look to ultimately ban all abortions in the United States have made a different decision. They are “going for it all.”

When a human life begins is an ethical and religious concept.  Science can outline in detail the progress of conception and pregnancy. We have absolute knowledge of the stages of development of the fetus.  What science cannot determine is at what point that potential human life becomes an actual, legal person.

Some, notably the Roman Catholic Church, believe that even contraception, preventing pregnancy, is wrong. Their view is the only moral way to prevent pregnancy is not to have sex.  They have gone onto legalize their view, joining others in going to Court to attack laws that require Catholic insurers to provide for contraceptive drugs and devices, most recently attacking the Affordable Care Act.  By the way, the Church has no problem with paying for drugs that support male erections.

Many other churches and individuals believe the human life begins at the moment of conception, the moment that the sperm fertilizes the egg.  Their view is that at that moment, the embryo deserves the legal right of “personhood.”  Personhood means that the only way that the embryonic “life” can be taken is to protect an equally protected “person;” the life of the mother.  

Some states have taken a third position for the purposes of their law:  that the “personhood” right is bestowed at the time that the fetal heartbeat can be detected.  Ohio is one of those states that passed a “heartbeat” bill, effectively outlawing most abortions after the sixth week of pregnancy.  Practically, most women don’t realize they are pregnant in the first six weeks; the legal result would be an almost total ban on abortion.

The Supreme Court in 1973, in its carefully nuanced decision, determined that those “personhood” legal rights, become an enforceable concern for states after the point of “fetal viability.”  Viability was determined as the earliest point in pregnancy when a child could be born and survive, somewhere after twenty weeks of pregnancy, or five months.

These are four differing standards of when a “potential” life becomes a legal “person.”  There is hardly a consensus view, but there are widely and strongly held opinions.  And given that those opinions are all about what an individual woman should do with her own body and her own life, it would be reasonable to assume that her individual opinion, her right to make a choice, should be protected.

But the pro-birth faction believes they can push their view into the law of the United States.  They have good reason:  President Trump’s two appointments to the Supreme Court, Justices Gorsuch and Kavanaugh, are likely to vote to overturn the Roe decision. Along with conservative Justices Thomas and Alito, it would only take the one vote of conservative Chief Justice Roberts to change America.

The pro-birth plan had been to allow those conservative Justices the “cover” of restricting the Roe decision.  The Ohio “heartbeat” law was part of that cover; take the Roe reasoning, and change “fetal viability” to “fetal heartbeat.”  That would practically have the effect of banning most abortions, while not technically overturning the Roe decision.

But the “Great State” of Alabama has decided to go for it all:  the legislature has passed and the Governor has signed a total abortion ban, with the only exception being the life of the mother.  The legislature specifically considered and rejected exceptions for rape and incest:  their goal was to present the Supreme Court with a black and white choice.

Alabama is not asking the Supreme Court to turn abortion regulation back to the states, to run the clock back to before 1973.  Alabama is asking the Supreme Court to rule that human life, legal personhood, begins at conception.  They are “going for it all;” and trying to force the ultimate question on the Court. The conceit of the conservative Justices that they can maintain precedent, restrict abortion and not overrule Roe v Wade, would not be possible should they hear the Alabama case.  

Alabama’s actions are likely to mobilize the pro-choice advocates.  Since the Roe decision, the pro-birth side has had the advantage, and the motivation, to organize and pressure for change.  Pro-choice had it easy; the law was on their side. But Alabama’s law is likely to make “choice” a major issue in the 2020 elections, bringing voters out from all sides of the issue.  

According to Gallup polling, 48% of Americans identify as pro-choice, and 48% of Americans as pro-life.  In that same poll, 79% felt that abortions should be legal under any or some circumstances, while only 18% thought all abortions should be illegal.

All of which may influence the one man who will make this momentous decision for the entire nation. With five conservatives on the Court and four liberals, it will fall to the “middle” conservative, Chief Justice Roberts, to make the call.  The fate of women in this country, and of fetuses, and of the nature of the law, will be on his shoulders.