Is it time to review the 1973 words of Justice Harry Blackmun?

Question

The Court said, "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

Given that 1/3 of a century has passed and the level of medical knowledge has increased many times over, should we take another look at Roe v. Wade?

Bill S (3) & J D (4) have given me two wonderful answers. It's going to take me days to digest them.

However, Bill, your second citation is not valid. Please resubmit.

Answer 1

Blackmun's comment that "those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus" was made after an extensive discussion of the long ensuing philosophical debate about when life begins, including the views of the stoics, Socraties, Plato, Aristotle, early common law theorists such as Coke and Blackstone, as well as more modern ethicisists. In other words, he was refering to a philisophical debate that has been ensuing for thousands of years. I don't think one can seriously argue that after a mere "1/3 of a century," with its corresponding increase in the "level of medical knowlege," the "disciplines of medicine, philosophy, and theology" have now reached a consensus as to when life begins. That issue is just as controversial now as it was in 1973.

If advances the advances in medical science up to this point have any effect on the ruling in Roe, it would be in moving the point in time when it would permissible for the state to regulate it. A state may regulate abortion at the point in time when it's interest in 1. The health of the woman and/or 2. The potential life of the fetus, become compelling. With respect to the first point:

"With respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health."

As medical science advances, that point will move as the abortion mortality and childbirth mortality rates change at various stages of the pregnancy. Thus, as abortions become safer, they will become less amenable to regulation for this purpose. As matters stand right now, the mortality rate for a vacuum aspiration performed during the first trimester of pregnancy are approximatley 5 to 10 times lower than those associated with carrying the fetus to term. Modern late term abortion procedures (D&X and D&E) are safer than the saline method that was common in 1973. Thus, the state's interest in regulating late term abortions is now weaker than it was back then (though it still very much exists). See Steinberg v. Carhart, 530 U.S. 914 (2000).

If those who oppose abortions wish to increase the state's interest in prohibiting elective abortion on this ground, their effort would be best spent ensuring that pregnant women are provided with pre-natal care, and investing in research to make pregnancy and childbirth safer.

As for the second state interest (potential life), the Court in Roe had this to say:

"With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother."

Presumably, over time advances in medical science will make "viability" earlier in pregnancy. However, there is a point of diminishing returns here -- the chances that any reasonably forseeable advance in medical science will push "viability" before the 23 week mark are remote.

None of these things effect the reasoning in Roe -- only how that reasoning is applied. Although there are many who would very much like to "take another look" at Roe v. Wade, their motivation is probably not 1/3 century worth of medical advances. More likely, the people who want to "take another look" at Roe simply believe that the decision was erronious when it was decided. I make no attempt to address that subject in this answer.
----
Edit: Link to Steinberg v. Carhart has been repaired.

Answer 2

I will paste the relevant section of the ruling. The issue of viability of the embryo/fetus is the most logical consideration... I put it to people that we all have the right to end our own lives, and therefore if the fetus/baby (it is irrelevant what you call it) cannot survive outside the womb, then its rights are redundant in any case. The womans rights to kill herself, and generally take any action she wants with her own body clearly preclude any rights of the potential child.

The rights of the woman over her own body are extremely relevant. Anti-abortionists are basically claiming some right to legislate that the woman is forced to carry the fetus theough its full 9 months of gestation until birth.

What gives them the right to do this?

On the other hand, once a baby has developed to the point that it can survive outside the womb, it clearly has the full rights of any person, and should be protected accordingly. (EDIT: Well, even that isn't clear, but I believe it is reasonable to assign a 'right to life' at that stage, and thus I agree with the judges' statement below.)

"With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother"

Do you guys actually understand what this means? I'm guessing many people don't even understand it, but if you do, my argument, which is similar to the judges, should be clearly acceptable to reasoning people.

EDIT: Thanks for that comment. I'll add some more. The 'right to life campaign' also attempts to diminish the rights of people to end their own lives or, more accurately, to take steps to achieve that outcome if they are unable to do it themselves.

There are some valid concerns about possible manipulation of any laws that allow such action, but such concerns should not cause this to be outlawed.

If there is a valid concern, and there probably is, then the concern should be extinguished, not the right of the poor bastard who is living in agony, distress, and/or indignity.

Why can't I make an appropriate statement, properly witnessed by a judge if necessary, to request my life be extinguished. Why can't I state now that if I am ever a 'vegetable', I lawfully assign this task to my mother or father, who would be glad to fulfil my wishes?

If anyone believes that they have more rights over my body than me or my family, I would like to challenge that!!!

Answer 3

I agree with Justice Harry Blackmun statement. His answer remains relevant as ever. Those in medicine, philosophy and theology are still unable to arrive at a consensus.

As for the rights of the unborn, are they already considered to be U.S. citizens?
Must one be a U.S. citizen to be entitled to those rights?
What about a fetus conceived in America but now in China, yet unborn, would they have the same rights of a U.S. citizen?
Does country of origin, or location of inception have any bearings on this question?

To my mind, the development of man's knowledge has not brought us to a position to speculate as to the answer.

Answer 4

I am not the slightest bit interested in reviewing what Justice Blackmun said about abortion and any one's medical knowledge of when life begins. I don't care about that, so far as Roe v. Wade is concerned. I am extremely concerned about what Blackmun said about the Constitution. He claimed the Constitution protects the right to have abortions. That much, if not anything else, is a lie and that much needs to be re-examined.

Answer 5

i hope u haven't been waiting on it.