Reply #283: Life begins at conception, and that is Roe's greatest weakness!

[IndianaGreen]

Roe was premised on fetal liability, based on medical science at the time. Advances in medicine since then have made fetal liability a liability for Roe by making it possible to have a fetus become viable much earlier than Justice Blackmun ever imagined. We are not far from the day in which science will be able to nurture a fertilized egg all the way to full development and "birth."

Archibald Cox, who achieved fame as the first Watergate prosecutor, referred to Roe as "a set of hospital rules and regulations" whose validity will be destroyed with "new advances in providing for the separate existence of a fetus." Historically the unborn was recognized as a person based on the medical knowledge of each historical era.

One cannot ignore the possibility that further advances in neonatal care developments will continue to push viability closer to the point of conception. Since viability in Roe marks the earliest point at which the State can impose restrictions on abortion, it would be within the realm of possibility for a State to intervene on behalf of the unborn the moment a woman first finds out she is pregnant without violating what remains of the Roe construct.

A concern over the vulnerability of Roe has prompted many prochoicers to look for other arguments that could be used to preserve the right to choose. Sarah Weddington and Linda Coffee, the two attorneys that represented the plaintiffs in Roe, discussed using the gender discrimination argument when they were preparing for trial. Forcing a woman to carry a pregnancy to term would violate her right to due process of law. The argument parallels the one used in racial discrimination cases. Weddington and Coffee did not emphasize the gender discrimination argument because there was a lack of precedent in 1971.

In a 1985 article written for the North Carolina Law Review, Ruth Bader Ginsburg criticized Roe for being based on the right to privacy rather than on the equal protection clause of the Constitution. Ginsburg argues that abortion prohibitions should have been linked to discrimination against women. The conflict, according to Ginsburg, is not "simply one between a fetus' interests and a woman's interests ...nor is the overriding issue state versus private control of a woman's body for a span of nine months. Also in the balance is a woman's autonomous charge of her full life's course" and "her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen."

Recommended Reading:

McDonnell, Kathleen. Not An Easy Choice: A Feminist Re-examines Abortion. Boston: South End Press, 1984.

Pojman, Louis, and Beckwith, Francis, eds. The Abortion Controversy: 25 Years After Roe v. Wade. Belmont: Wadsworth, 1998.

Weddington, Sarah. A Question of Choice. New York: Penguin Books, 1993.