Opinion

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

A new Nebraska abortion law could make its way to the Supreme Court. Instead of using evolving medical science to redefine when life begins, the court must hold that the due process clause’s primary guarantee of life make abortion unconstitutional.

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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.

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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.

This dilemma forced the court to make a decision between two principles that were originally understood to work in conjunction with one another but were now found to be mutually exclusive – that of equal protection or that of segregation. In Brown v. Board of Education (1954), the court rightly chose the guarantee’s primary purpose of equality over its secondary understanding of segregation.

Ironically, the court’s continuous quest to redefine life in the face of evolving modern science has shown how futile a task it has become. Litigation over whether life begins at the third trimester, viability, or when an unborn child can feel pain has shown that the Constitution's due process guarantee of life has two originally understood but now mutually exclusive principles – life and abortion.

Faced with this reality, the court must now choose the due process clause’s primary guarantee of life over its secondary understanding of abortion and thereby hold that all abortions, with one exception, are unconstitutional.

That one exception should be if the life of the mother is at risk. While it may be noble for a mother to choice to sacrifice her life for her unborn child’s, the state cannot force her to do so.

Under the 14th Amendment, the federal government would have the power to enforce this constitutional ban on abortion, including deciding who and how to punish. While theoretically they could punish both the abortion provider and the mother, prudence and public opinion would only support the former. Additionally, while the “morning after” pill would be prohibited, other forms of birth control would be constitutional.

Obviously, a Supreme Court declaration that almost all abortions are unconstitutional would not end the practice overnight. The battle over abortion is not simply one of constitutional law, but also one for the hearts and minds of American women. It will have to be waged through compassion and support for women struggling with unwanted pregnancies, as well as continued education efforts to inform women of alternatives to abortion.

The late Sen. Ted Kennedy (D) of Massachusetts once denounced an originalist America as one “in which women would be forced into [unsafe] back-alley abortions.” While it is true that in the year before Roe 39 women died after having undergone illegal abortions, research has shown that most of those deaths could have been prevented with the use of modern antibiotics. To ensure that women will not die from botched illegal abortions, our hospitals must always remain open and welcoming to them.

Certainly any decision reversing Roe, much less one holding abortion unconstitutional, would make an already contentious issue even more volatile. Absent a constitutional amendment, however, only the court can resolve the debate it started, and it should take the case of Nebraska’s newest abortion law to resolve it in favor of life.

Nathan W. Tucker is an attorney in Davenport, Iowa, and the author of “We The People: The Only Cure to Judicial Activism.”

[Editor's note: The original version of this essay misstated the year Brown v. Board of Education was decided.]

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