Sometime during Obama's first term the Freedom of Choice Act will once again come up for consideration in Congress. Like it or not, the abortion question is not going away. The 1973 Roe decision was the first of several attempts on the part of the Supreme Court to address the abortion issue in the absence of clear constitutional guidelines written into law by state legislatures.
The all-or-nothing mindset of both sides of what passes for debate these days leaves no middle ground, even though the Court's original recommendation was that the states balance their respective abortion statutes to resolve a timeless question: at what point does a fetus reach legal protection.
Thirty-five years later just mentioning of the word "abortion" is enough to stir up extreme and seemingly unbendable attitudes that have been carelessly called pro-life or pro-choice. Or, if you prefer, anti-abortion or pro-abortion. Those of us who find all abortions morally reprehensible but also believe in a pregnant woman's right to have an abortion find no footing in the discussion.
FOCA as written is vague on several points, but the one vague word which will not vanish is "viability".
An unborn baby is considered "viable" when it can survive on its own, outside the mother's protective body.
The Abortion Papers , published by Bob Woodward in 1989, will inform the discussion.
The Roe v. Wade memos were found among the personal papers of the late Justice William O. Douglas, which became available to the public at the Library of Congress last year.
Supporters of Roe note that the documents address only the portion of the Roe opinion that draws lines around the various stages of pregnancy and do not refer to the centerpiece of Roe, the conclusion that there is a fundamental right to an abortion squarely based on various constitutional rights of privacy.
These Roe supporters also say that once the court defines a new right, it frequently attempts to provide useful guidance to the legislatures about what laws will pass constitutional tests. In the 1966 Miranda case, for example, the court spelled out the specific right-to-an-attorney warning that the police have to give to those who are arrested.
"Whatever they decided was going to be arbitrary, once they decided they had to balance this right to an abortion with the countervailing rights of the potential life [of the unborn fetus]," said George Frampton, a former law clerk to Blackmun.
The court in 1973, headed by Chief Justice Warren Burger, faced a dilemma as it considered the abortion case. A clear majority felt that abortions in the early months of pregnancy should be permitted but that there was certainly a point in the later months when the fetus, not the mother, deserved constitutional protection. Where to draw the line?
Blackmun said in his memo to the other justices that he had determined to set the cutoff at the first trimester, or first 13 weeks of pregnancy. "This is arbitrary," he said, starkly acknowledging his problem. "But perhaps any other selected point, such as quickening or viability (of the fetus), is equally arbitrary."
("Quickening," a term describing fetal movement, usually occurs between the 16th and 18th weeks of pregnancy. "Viability," or ability to live outside the mother's womb, is usually placed at between 24 and 28 weeks.)
Blackmun's use of the term "arbitrary" was unusual even in a confidential memo, according to half a dozen legal experts who were read portions of the Roe memos. None of these experts could recall reading such a statement in internal communications among the justices or published court opinions.
In the final published opinion, Blackmun, far from acknowledging the "arbitrary" aspect of his ruling, wrote that the woman's right to an abortion is "compelling" and prevails up "to approximately the end of the first trimester."
That's enough to stir discussion this morning. And that's from twenty years ago.
Sometime between then and now some states have succeeded in crafting guidelines to limit abortions, but thanks to extremists on both sides of the issue the courts have been trapped into allowing the truly horrible, although infrequent, late-term abortions which are basically a variant of infanticide. This state of affairs is due more to legislative apathy than judicial activism.
Two steps must now take place.
First, the issue must be federalized to enable Congress to enact legislation at the national level to supersede a confusing and inconsistent variety among the fifty states.
Second, in the matter of restrictions a viability line will finally be drawn determining at what point am unborn child receives constitutional protection.