Kagan, abortion, and the Supreme Court’s coming moment of truth on Roe v. Wade

Abortion, as always, will be one of the most contentious issues in the upcoming confirmation hearings over President Obama’s nomination of Solicitor General Elena Kagan for a position on the US Supreme Court.

The hearings come just weeks after the Nebraska legislature passed the strictest abortion laws in the country when it prohibited abortions after 20 weeks of pregnancy. This new law will probably be challenged in court, and proponents of the measure hope that the Supreme Court will eventually agree to take the case and use the opportunity to redefine life.

However, instead of simply redefining life once again, the court should consider what happened with segregation as a model for acting on the abortion debate.

In Roe v. Wade (1973), the Supreme Court ruled that states could ban some abortions because they “have an important and legitimate interest in preserving and protecting the health of the pregnant woman [and] still another important and legitimate interest in protecting the potentiality of human life.”

The court claimed modestly that, “[we need not resolve the difficult question of when life begins” because “the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

Despite this disclaimer, however, the court in Roe decreed when life, or at least the “potentiality of human life,” was important enough for the state to protect by developing a trimester formula.

After 19 years of determining that life should only be protected after the third trimester, the court in 1992 undertook once again to define life in Casey v. Planned Parenthood. This time it defined life at the point of viability – the “point at which the fetus becomes … potentially able to live outside the mother’s womb, albeit with artificial aid.”

Now, supporters of Nebraska’s abortion law want the Supreme Court to redefine life again, this time as at the point when the unborn child can feel pain. According to several doctors who testified before the committee, a child can feel pain as early as 20 weeks, which is roughly two-to-four weeks before the point of viability.

But many conservatives, who argue that the Constitution should be read as it was originally understood by its Framers, have long argued that the courts should get out of the business of defining life.

Originalists such as Robert Bork and Supreme Court Justice Antonin Scalia, citing historical evidence that the states were free – from the birth of our country until Roe – to ban or allow abortions as they saw fit, argue that there is no constitutional right to an abortion.

At the same time, they concede that this historic record also indicates that the unborn do not have a constitutional right to life. The Constitution’s due process clause guarantees that the states or federal government cannot “deprive any person of life, liberty or property without due process.”

Leading originalists allow that, if the states traditionally had the right to permit, regulate, or ban abortions as they saw fit, then the definition of “life” in the cause cannot be interpreted as applying to the unborn. The constitutional theory of original intent is often understood, therefore, as eliminating both the mother’s right to abort and the unborn child’s right to life.

But, just as leading originalists have pointed out that a constitutional prohibition on racial segregation can be reconciled with originalism, so, too, can a constitutional prohibition on abortion. A strong historical argument can be made that those who framed the Constitution’s guarantee of equal protection believed that segregation did not violate that guarantee.

However, by the middle of the 20th century it became apparent that separate rarely – if ever – was equal. Endless litigation over what was separate but equal posed a serious drain to the time and resources of the judicial system.

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