Contrary to very popular belief, on both sides, the 1973 Roe v. WadeSupreme Court decision will not be overturned in a single court case, even with a clear conservative majority on the Court as it has at present. Personally, I am skeptical of politics on the Court. The evidence of this attitude is apparent when one considers that, in spite of the apparent “political” leaning of the Court, it arrives at unanimous decisions a full 59% of the time over its history since 1789, when established. No other split decision of the Court has this plurality.
Further, note that when Roewas decided, the 7-2 split decision included four Justices appointed by Republican Presidents. So much for partisanship on the Court. It is a popular, but unwarranted myth.
Roeis a much more complicated decision to overturn. Of nearly 1,900 cases taken by the Court in its history, there have been but 200+ decisions later overturned. There are too many variables, all of which would require a perfect storm of a single case to come before the Court in order for this generation’s Court to overturn Roe.That is not very likely to happen.
I perceive three major points, all three of which must be completely revised in current law, not just Roe,which did not establish any law; rather, it merely agreed with several state laws, while requiring other states to amend their law on the subject.
Those three points are:
1. The fetus is a human being and a person.
2. The fetal/amniotic/umbilical/placental tissues share unique DNA separate and distinct from the mother.
3. Privacy of a woman’s body does not extend to the fetus as described by the privacy discussion in the Roedecision.
Fetus is human: Once upon a time, even as late as the Roedecision, this was little more than assumption. And, while some still argue the point that a fetus is not human until birth, thus defining, they think, what it is not,they do not alternatively define by explanation what it is.
However, science has stepped in to demonstrate that by every definition of “human,” except one, the fetus exhibits every single characteristic of humanity; by DNA, by form/fit/function, and by biologic systems.
Currently, by one statute, however, a “person,” by definition, does not necessarily accept a pre-natal condition, although 1 US Code §8 does come very close to it. This will be the easiest, and likely the first point to be altered, and it may not occur in a Roe-related case.
The sub-set question becomes, if the fetus is human, does it share equal personhood rights even if unborn? Here, again, 1 US Code §8 comes up to, but does not cross that threshold.
However, there is another statute, the Unborn Victims of Violence Act of 2004, which amended 18 US Code §1841 to recognize that any violence committed on a pregnant woman that also resulted in the death of the fetus would carry a dual charge of murder, which is, exclusively, the malicious cause of death with aforethought to a human being, a person. Therefore, this statute recognizes the personhood of the unborn fetus.
Fetal… tissue is separate from mother.This point, as well, was nebulous until the human genome was completely mapped by the close of the twentieth century, twenty-plus years following the Roedecision. By that time, DNA identification was becoming commonplace, and it was demonstrated by empiric evidence that fetal/amniotic/umbilical/placental tissues shared common DNA that was separate and distinct from the mother.
It was secondarily determined that not even blood was shared between mother and fetus, but that, rather, in the cellular attachment of the placenta to the inner uterine wall, there is a blood barrier similar to that in the lungs such that nutrients pass through the barrier, but blood does not. In the lungs, the barrier allows exchange of oxygen for carbon dioxide without internal loss of blood.
The separation feature is critical to a reversal of the Roedecision, which stipulates that a mother/fetal bond is physiologically and genetically cohesive and identical.
To tip that scale, the third point will require discussion:
Privacy of a woman’s body. The privacy issue is nebulous, at best, even though the Roedecision cites amendments 1, 4, 5, 9, and 14 as descriptive of individual privacy even though only one, the 14th, contains any description of “privacy” at all, and in that context, the amendment verbiage relates only to one’s personal protection against unwarranted government search and seizure. One might argue that since, in many cases, the government is funding the abortion procedure, at least in some cases, that is exactly what abortion is. The other cited amendments do not even contain the words, “privacy,” or “private,” but, nor does the 14A. The discussion of the application of “privacy” is interpretive, only.
But, even physiologically, it is a leap from current demand of understanding the science to consider that the fetus is not a part of the woman’s body. Once truly understood by the simplicity of the true science, it becomes much clearer that the Roedecision got it wrong.
As noted above, fetal… tissue DNA does not match the mother’s DNA. On that basis, alone, the fetal… tissue is not part of the woman’s body. Neither is food, one might argue. Organic food does not share her DNA, either, but it clearly becomes part of the woman’s body. More correctly, it is broken down digestively to its simple components, and is then either absorbed by her body, or evacuated, or, in the case of pregnancy, shared with the fetus until it comes to full-term.
It becomes apparent that the separation of mother and fetal tissue is elegant. It is intended that food be absorbed by the body as its first objective. Not so with fetal… tissue. The fetal objective is to become a separate, distinct, and wholly self-driven individual [or more in the case of multiple simultaneous births]. It is carried in the woman’s body, surrounded by it, much like a ping-pong ball is held in the closed fist, but, by birth, the fetal… tissue, all of it, is expelled from the mother’s body.
This point will likely be the last to change its paradigm, but it is certain to do so when the science, and the apparently conflicting legal statutes, are more generally understood and accepted as fact. The difficulty is that, during the nine months of gestation, the fetal… tissue certainly seems like part and parcel of the woman’s body. The two previous points are going to have to change their paradigms before this third point is ever modified. Even then, to surrender a privacy that has been a part of society by Court precedent for two generations, and certainly interpreted as such for far longer, is a difficult legal demand, even for a scientifically-absorbed Supreme Court.
A couple of years ago, present and former Justices of the Court rendered commentary on the Roe v. Wade decision, including then Justice Ruth Bader Ginsberg, who determined that the Roedecision certainly warranted a re-examination by the Court, at least, and potential overturning for a variety of reasons, including some of the points reviewed here.
