According to Justia, in Roe vs Wade "the Court established that the word "person" as used in the due process clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection."
However just when exactly a fetus crossed the magic line to personhood became more problematic as technology advanced. The neat "trimester" boundaries were soon overtaken by medical science. Just who was alive? Professor Teneille Brown, writing in the Yale Law blog examined legislation put forward by four states to measure consciousness in an effort to answer that question. They relied on the determining the ability to feel pain, arguing that “at least by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.”
Brown objected to this approach since "this analysis hinges on how we define pain". Moreover, it avoided the issue of potentiality versus actuality. Legally, persons are no alike, even if they are in some sense persons. Brown writes:
Legal definitions of personhood, while informed by philosophy and morals, are not bound by the same strictures. We can draw on theories of what counts as a conscious person, but under Constitutional analysis, we must answer a separate question: is this a legal person, endowed with relevant legal (as opposed to philosophical or metaphysical) capacities? The legal rights attached to various persons should necessarily change based upon the context, regardless of their moral or philosophical status as persons. To borrow from Peter Singer, “potential prime ministers obviously do not have the rights of actual prime ministers, so that ‘potential persons’ …can hardly be considered in the same moral category as actual persons, or ‘us’”.
Rather than being a binary construct that applies in all legal settings, legal personhood ought to depend on the legal context and the nature of the right that is at stake. Rather than putting forward an exhaustive list of criteria, (with “ability to feel pain” being a necessary and sufficient condition for all aspects of legal personhood), perhaps we should borrow from the bundle of sticks metaphor from property law analysis. Depending on the legal right that is at stake, you may have “enough” of the sticks in the bundle to be a legal person for this particular context. But we should be very careful not to put forward one stick in the bundle (i.e., ability to feel pain) and use it to argue that this entity is a legal person endowed with greater rights, with associated greater state protection, than the rest of us. The logical extensions of such an approach are far too sweeping to contemplate.
Brown is preparing the groundwork for abandoning a medical definition of personhood, since given the information present in a fetus, science capable of bringing it to term eventually. Thus, to preserve abortion on demand it is necessary to shift its basis to a purely legal definition of personhood. Advances in technology are eroding the distinction between a fetus and a new born child.
When Roe vs Wade was promulgated, the lower limit of viability was 28 weeks. By the time of Planned Parenthood vs Casey (1992), it had dropped radically. So Planned Parenthood abandoned time-based viability boundaries in favor of a "undue burden" approach."
On account of technological developments between 1973 and 1992, viability itself was legally dissociated from the hard line of 28 weeks, leaving the point at which "undue burdens" were permissible variable depending on the technology of the time and the judgment of the state legislatures.
But costs also drop and "undue burdens" change. Amilla Taylor was born in Florida after a term of only 21 weeks and 6 days. Eventually that too may no longer serve defend abortion on demand. Bioethicist Dr Alberto Giubilini, an Italian based in Monash university, has signaled that viability and even "undue burden" are no longer be a defensible line. He pointedly asks, “what is the moral relevance of birth in the times of neonatal intensive care?”
Justice Sandra Day O'Connor argued in a 1983 decision that Roe was on a "collision course with itself." She said that improvements in technology would continually push the point of fetal viability closer to the beginning of the pregnancy, allowing states greater opportunity to regulate the right to an abortion. ...
Some medical ethicists and constitutional scholars say that the Supreme Court was wrong to create the pre-viability/post-viability distinction in the first place. Why, they ask, does the fact that a fetus can survive outside the womb with the help of vast medical technology change either of the interests at war in the abortion debate: the fetus's own claim to "human-ness" and a woman's right to control her body? Even if viability is an important moral line, is it drawn in the right place? Keeping alive a baby born in the 22nd week costs several hundred thousand dollars and usually fails, regardless of the effort.
Dr Alberto Giubilini runs up the white flag and directly advocates after-birth abortion in his paper "After-birth abortion: why should the baby live?" In it, he completely abandons the distinction between a fetus at any stage and a live baby knowing that science will soon erase it. "The newborn and the fetus are morally equivalent," he declares. The real issue, Giubilini argues, is not whether they are technically alive but whether society wants them to live.
If criteria such as the costs (social, psychological, economic) for the potential parents are good enough reasons for having an abortion even when the fetus is healthy, if the moral status of the newborn is the same as that of the infant and if neither has any moral value by virtue of being a potential person, then the same reasons which justify abortion should also justify the killing of the potential person when it is at the stage of a newborn.
Ah, now we cut to the chase.
The issue, according to Giubilini, is about cost and should be approached just like euthanasia. "Euthanasia in infants has been proposed by philosophers for children with severe abnormalities whose lives can be expected to be not worth living and who are experiencing unbearable suffering."
Except in this case the abnormality some babies or fetuses -- they are equivalent terms according to Giubilini -- suffer from is acute sine pecuniam meaning, "the government ain't got no money".
Nonetheless, to bring up such children might be an unbearable burden on the family and on society as a whole, when the state economically provides for their care. On these grounds, the fact that a fetus has the potential to become a person who will have an (at least) acceptable life is no reason for prohibiting abortion. Therefore, we argue that, when circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible.
Giubilini's arguments, though horrifying to some, bring an immense clarity to the debate. The problem, plainly put, is money and its handmaidens power and politics. Since babies -- infants, fetuses, whatever -- don't vote, but constituency groups in favor of abortion do vote, the rights and wrongs of the matter are less important than the dollars and cents. It boils down to "who sent you"?
One of the most ironic aspects of the legal debate is that the justification for abortion is anchored on the Fourteenth Amendment's right to privacy. Yet the Fourteenth also dealt with another group of legal unpersons. Blacks. "The Citizenship Clause (also known as the Naturalization Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution. This clause represented Congress's reversal of that portion of the Dred Scott v. Sandford decision that declared that African Americans were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship."
Whatever the legal niceties, the political parallels between Dred Scott and Roe vs Wade are bound to be articulated. "If the negro is a man, why then my ancient faith teaches me that `all men are created equal;' and that there can be no moral right in connection with one man's making a slave of another." Lincoln's words are just waiting to morph into "if the fetus and the newborn are equivalent then my ancient faith ...".
One of the reasons why the horrifying story of Kermit Gosnell's Philadelphia abortion clinic has been largely ignored the media is that it contains every explosive element of the debate. There's no Roe. Just the babies of poor black women butchered on an assembly line basis by a corrupt, incompetent and wholly callous "provider" who somehow evaded inspection for years.
fetal remains were stuffed into: 'cabinets, in the basement, in a freezer, in jars and bags and plastic jugs'. Tiny baby feet, it is claimed, were discovered in specimen jars, lined up in a macabre collection. ...
'(He) regularly and illegally delivered live, viable babies in the third trimester of pregnancy and then murdered these newborns by severing their spinal cords with scissors,' said a report of the grand jury that investigated Gosnell and his clinic for a year.
According to the report the 'real' reason for the Women’s Medical Society: 'was not health; it was profit'.
'Gosnell catered to the women who couldn’t get abortions elsewhere – because they were too pregnant.
'For Dr. Gosnell, they were an opportunity. The bigger the baby, the more he charged.'
Most doctors won’t perform late second-trimester abortions - those in the 20th week of pregnancy, because of the risks involved.
But according to the report, Gosnell specialised in performing abortions well beyond 24 weeks.
The political reality of abortion is somewhat different from its espoused intentions. Gosnell's clinic was really in the business of infanticide for poor people. We just didn't want to call it that. Dr. Giubilini would be nodding knowingly. He after all, claimed it was always about money and after-birth abortion and we had better face up to it.
The restrictions and wise-sounding boundaries were perhaps only ways to simply make the trade of death for money more palatable to social sensibilities but only at the cost of enlarging a legal doctrine that makes personhood dependent on a legal ruling. For if a man is what he costs the state, then of what value are the elderly, the disabled and the African-American?
What the Fourthteenth amendment tried to abolish was the notion of the Half Man. Now it may be used to create the Not-Yet-Man; something not quite a man until he can be afforded. Can the contradiction be resolved?
A house divided against itself cannot stand. I believe this society cannot endure, permanently, half man and half un-men. I do not expect the society to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other.
Which thing will it be -- ah there's the rub?