Dobbs: The Elephant in the Courtroom
I think we’re missing the point in the Dobbs’ case–and it’s not just the point of viability. We’re missing something bigger.
Dobbs v. Jackson Women’s Health Organization is the latest U.S. Supreme Court challenge to the 48-year-old Roe v. Wade ruling, which, with its sister case, Doe v. Bolton, legalized abortion in America for any reason through all nine months of pregnancy.
For 48 years, every case to come before the U.S. Supreme Court attempting to limit abortion in any way has been shot down using stare decisis, a term meaning “stick with precedent,” precedent in this case being Roe.
But Justice Harry Blackmun, in writing the majority opinion for Roe, left Roe vulnerable, giving us the key to its reversal. “The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment …. If this suggestion of personhood is established, the appellee’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Fourteenth Amendment.” Roe v. Wade, January 22,1973
The key is personhood. “If personhood is established.” What is personhood? How can it be established? Justice Blackmon implied that future advances in science and medicine might push viability (the ability to survive outside the womb) earlier and provide more substantive definitions of “life.”
In oral arguments for Dobbs, lawyers on both sides talked extensively about viability, a point during pregnancy at which a fetus is able to survive outside its mother, thus qualifying it as a “person” under the Constitution. But if personhood is ever established in the womb, Roe could be not only reversed but nullified–discredited as a precedent altogether.
The point of viability and even the criteria used to determine it are controversial and, according to Justice Blackmon himself (in private papers), “arbitrary.” I would submit that, based on recent scientific discoveries, they are meaningless.
In Dobbs v. Jackson Women’s Health, Mississippi wants to restrict abortion after 15 weeks’ gestation, “except in cases involving medical emergencies or severe fetal abnormality.” The state bases this gestational age limit on expert testimony that at this point in pregnancy the fetus can feel pain.
On the face of it, it could be just one more case the precedent of Roe v. Wade will knock down. But for the first time it looks like the Court has the five votes necessary to reverse Roe, sending the power of decision-making back to the states where “The People” can help determine their own laws regarding abortion.
Mississippi’s Solicitor General Scott Stewart explained that scientific evidence of fetal pain is one of the example of the “advances in medicine and science” since the abortion decisions of Roe v. Wade (1973) and of Planned Parenthood v. Casey (1992).
Justice Sonia Sotomayor objected, “A gross minority of doctors believe a fetus can feel pain before 24-26 weeks… a small fringe of doctors …”
I don’t know what scientific weight to give the claim that fetal pain is dismissed by a “gross minority” of doctors. But I give a lot of weight to the opinions of two abortionists who became pro-life in the ’80s based on evidence they saw of fetal pain.
Dr. Bernard Nathanson, abortionist and author of Aborting America, became pro-life after he converted to Catholicism. He then persuaded a protégé to let him use ultrasound imaging to film a 12 week fetus suction abortion (with the permission of the woman, who would not be talked out of aborting).
Nathanson added his own narration of what was happening during the procedure, called the resulting documentary “The Silent Scream” and insisted his protégé watch it.
At the end of the video, the doctor watching his own abortion sat stunned, then breathed, “OH MY GOD!” and walked out of the clinic. He never did another abortion.
Does the fact of fetal pain at 12 (or 15) weeks establish the personhood of the fetus?
There have been no changes in the science regarding the status of the fetus since 1973–every textbook on human biology, embryology, and fetology has always presented the tiny being conceived in a human womb as alive and human.
But there have been significant changes in the technology which proves the science. Ultrasound, as used by Dr. Nathanson, for instance, provides a window into the womb to see more and more clearly what is in there.
And what is it they see? What is it that is in the womb, that we are aborting?
When pregnant women look through this window at what is inside, they don’t have to be told what it is. Seeing “it,” many of them change their minds about having an abortion. It is awesome to discover—not “clumps of cells” or “fetal tissue” as described by Planned Parenthood and other abortion providers but a curved human spine, rib cage, closed eyes, tiny arms and legs, later in gestation a baby’s face, a little mouth yawning, sometimes a little thumb in that mouth.
That is the “elephant” in this courtroom, one might even say the elephant in the womb. When we actually look into the womb what we see is a real, tiny, active human being.
In certain cases, unborn babies are already treated as persons:
Fetal surgery: A Mayo Clinic website lists dozens of procedures done “routinely” on unborn babies in utero, “to help improve the long-term outcome of children with specific birth defects.” When operating on them, their doctors consider fetuses their “second patients,” that is, persons. You don’t do surgery on a “clump of cells.”
Constitutional rights: Some babies have constitutional rights before birth, such as the right to inherit property.
I wrote earlier that I believe the concept of a point during pregnancy when the fetus becomes viable is meaningless. First, I believe no baby can ever survive outside the womb, even at childbirth, without continuing to get the nurture and nutrition it gets inside the womb. (The IFA amicus brief addressed this.)
There are rare cases of babies surviving a late-term abortion (I wrote the biography of one of them) but unless they are rushed to NICU—most of them are just set aside or even smothered—they will not continue to survive.
One could make the case that none of us is viable at any point in our lives without the life support of nutrition, water, oxygen and personal care.
But second, I believe that there is a point in time when the unborn becomes a person—but that point is not during pregnancy. It initiates pregnancy. From that certain point, pregnancy is a continuum. Heartbeat, brainwaves, “quickening” (movement of the fetus felt by those outside the womb), capacity for feeling pain-these aren’t points when life begins. They are evidence that life already exists. They are milestones along the way as life develops.
How do we know?
In 2016 scientists made an historic discovery. They were able to capture the moments before, during, and after a human egg was fertilized. At the split second of implantation, the event triggered a literal explosion of light (looking much like a solar flare). We have astonishing photographic evidence of that electric burst.
At the instant of the fertilization event between two gametes, a zygote (a eukaryotic cell) is formed. The zygote’s genome is a combination of the DNA in each gamete, and contains all of the genetic information necessary to form a new individual organism.
At every conception of a human being—at our conception—this brand new cell with its own unique DNA (genetic information for development and growth) begins to divide, following those instructions, that design, to differentiate into pre-determined organs and parts of a unique, living human body.
This process is a continuum which will continue, if not interrupted, until natural death. (Nothing will be added from conception on but nutrition and time.)
If life begins, as it seems obvious it does, with that burst of light at impregnation, then we have personhood, as defined in the Constitution—with all its inalienable rights and protections. Including the right to life.
Despite changes in appearance and growth, that gamete/embryo/fetus/baby remains the same organism from its very first cell. It has—we have—the same DNA with one cell as we will have in every cell as long as the organism lives.
It’s a person then and through every stage of life to come.
Fetuses are not an alien species, or somehow sub- or pre-human. They—we—are the same being, the same person, that we were at conception, as we were when our heart and brainwaves began, the same person we were when we learned to eat with a spoon and ride a tricycle and struggle with multiplication and fall in love.
Lana Clarke Phelan, author of The Abortion Handbook for Responsible Women, whose fabricated statistics helped legalize abortion in this country, spoke at a meeting I attended in Long Beach, CA back in the 80s. She said she routinely asked women who came to her for abortion referrals, “Do you think it’s a baby? I don’t help women kill their babies.”
She made truth subject to the whims, opinions, and desires of the individual. But a woman cannot change an unborn baby’s status by changing her mind, wanting it this minute (“my baby”), not wanting it the next (“clump of cells”).
It’s a person. We are persons.
We are all former fetuses. In fact, apart from location, I could accurately describe myself as a 932-month fetus. I have the very same DNA in every cell of my body as I had in that first cell. That zygote/embryo/fetus/baby–that person was me.
And still is.
So it’s moot whether you abort that process at one cell, two cells, or after every cell has split and developed into its assigned organ or limb, after the differentiated arm is throwing baseballs and the fully developed uterus is carrying cells which will someday contribute to the development of your grandchildren.
If what resides within, what has been entrusted to, the womb of a pregnant woman is a person, then abortion is the violent taking of life. From the very beginning.
Please share your thoughts and prayers about the personhood of the preborn in the comments.
Jessica Renshaw is an intercessor and author of GIANNA, ABORTED AND LIVED TO TELL ABOUT IT, the true story of a baby born alive during a legal saline abortion (Focus on the Family, 1995, Gold Medallion finalist) and COMPELLING INTERESTS: A NOVEL ABOUT ABORTION FROM THE HEARTS OF PEOPLE ON BOTH SIDES.
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