Monday, February 16, 2004

A discussion on abortion

A friend wrote to me and asked about Roe v. Wade. I reproduced the relevant parts below. Forgive me for the loose manner in which it is written.

what is it that needs to happen on the abortion issue. you said roe v wade shouldn't be turned over, but that it needs to be established when life begins, and.... then... what?

a lot of people say roe was simply an abortion case. that is not true. if roe were an abortion case, then the issue of murdering unborn child would be closed - a female could opt out of pregnancy anytime she wanted. that is just not the law.

roe was a right to privacy case. secondly, roe decided when a fetus ceased being a mass of cells and became a person.

starting the late 1800s with a law review article and culminating in roe, the supreme court recognized that we as residents of the united states have a fundamental right to privacy. that is quite a mouthful for someone familiar with constitutional principles. let's take it apart ...

a "right to privacy" has been stated as a right to be left alone, away from government interference in our daily lives. there is not a right to privacy stated in the u.s. constitution.

in the late 1800s (1897/98?) a law review article was written claiming that we had a right to privacy, a right to be left alone. the concept was that the right to privacy is a "penumbra" right in the constitution. a prenumbra is a shadow, like what the sun casts upon the moon during an eclipse. to say that the right to privacy is a penumbra right is to say that there are several rights declared in the constitution and when you look at those they cast a shadow - when you view those declared rights, you see this other right, not declared but just as real ... a penumbra, a shadow - the right to be left alone - the right to privacy.

in the 1920s or so a case came up involving elliot ness (the prohibition atf agent). mr ness wanted to introduce some wire taps of phone conversations into trial. the defendants fought it. the court let them in ... said that the right to privacy was not person based, but place based. seems the taps were done on the telephone pole outside his residence and in the basement of an office building. no expectation of privacy existed for those places. (an expectation of privacy is like when you and me put our foreheads together and whisper - we expect that conversation to be ours; if we were in a restaurant and speaking in normal tones, we would not expect the same respect from other people to not listen and perhaps repeat what we said.)

a similar issue came up maybe 20 years later ... but then in the 1950s/60s griswold happened. griswold was a contraception case. this was during the time when contraceptive devices were like erector sets ... very complicated. a law said that no one could train anyone else in the use of contraceptive devices. the court tossed the law. said it interfered with the privacy of a married couple.

then came roe. 1973. a texas woman, single, wanted an abortion. texas said no. court tossed out law. said the right to privacy was personal to everyone (not just married couple like griswold, and not place based like the elliot ness case). but the issue of privacy is a lot deeper ...

texas argued that they had a right to protect an unborn child. it was human, too. court said it recognized the state's right to protect the interests of all of its residents. but it went on to say that the moment of conception did not guarantee a birth. that the unborn was not a child until it matured within the womb to a stage where it could survive outside the womb. 22 weeks.

so when a child is 22 weeks after conception, the mother loses the absolute right to an abortion.

the murderers have taken the issue through the states and said that abortions after 22 weeks must be allowed if the mother's life or health are at stake. sounds fair. then they expanded the definition of "health" to include physical and mental health. "mental health" includes issues like depression ... such a nebulous word that it includes matters such as fear of financial insecurity.

so roe is first a right to privacy case, then, secondly, it recognizes that a fetus doesn't have a its own right to privacy until it is viable outside the womb. it is at that point that he or she has rights equal to the mother. once viable, the fetus is a person for legal standards.

so the issue becomes whether viability is the proper measure. we always look for consistency in the law. perhaps, then, we should end life when a person ceases to become viable - when the person is no longer able to fed or take care of themselves. clearly, anyone in a coma is in this class. most elderly folks in a nursing home, too - if they cannot take their own meds, feed and bathe and clothe themselves, then they fail the roe viability test and should have their life terminated just like an abortion.

but if that seems unpalatable, then perhaps we can find consistency by looking at the criteria that we use for determining when people die and apply that same criteria for when someone becomes "alive."

a beating heart is the first and primary test to determine if someone is still alive. a heart beat can be heard in a fetus beginning with 18 to 30 days after conception. most women haven't a clue they are even pregnant at this stage.

the heart, however, is the only organ not dependent upon the brain for its basic functioning. and since we can keep lungs going to supplement the heart's activities even though the brain has ceased to function, another test has arisen to see if a person is dead - brain waves. at about 40 days the fetus has measurable brain waves.

so the issue in roe is when the fetus is recognized as a person. for consistency with our view of when life ends, it seems the test for an abortion should be at 0-17 days after conception.

but wait ... if we know that if no matter what medical science does that a particular patient's heart will cease functioning in, say, several days, why don't we just declare that person dead when that determination is made? why do we wait until the heart actually stops?

similarly, if medical science does nothing after conception and the heart begins to pump several days later, at 18 days after conception, why do we say the fetus is not yet alive? not yet a child?

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