Not only did Roe v. Wade’s majority opinion fail to address the question of whether the unborn human being is a moral subject (as I showed earlier in part 1). Its reluctance to engage that question directly undermined two other arguments central to the Court’s holding: (1) the argument from the claim that the fetus is protectable under the Fourteenth Amendment if it is in fact a person, and (2) the argument to state interest in prenatal life from fetal viability.
According Justice Harry Blackmun, author of the Court’s opinion, “If the suggestion of personhood [of the unborn] is established, the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [Fourteenth Amendment].” That amendment asserts: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
So, if the defendant in this case – the state of Texas – could have shown that the unborn child is a person under the Fourteenth Amendment, then there would be no right to abortion.
Now consider what Blackmun writes elsewhere in his opinion: “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 I pointed out in part 1, this claim actually seems to justify prohibitions on abortion, since the state may want to err on the side of innocent human life when experts disagree over whether the act in question results in unjustified homicide.
But setting that problem aside, let us juxtapose Blackmun’s appeal to disagreement with his claim that the fetus is protectable under the Fourteenth Amendment if it is in fact a person. It’s not clear how one gets a right to abortion from this.
For if, as Blackmun concedes, the right to abortion is contingent upon the non-personhood of the unborn child, his appeal to disagreement does not establish that premise. So, at best, it shows us that the right to abortion is as much subject to the disagreement of experts as is the unborn’s personhood, since if the latter is true, it defeats the right to abortion.
Consequently, far from establishing such a right, Blackmun’s logic establishes that the Court should be as agnostic about the right to abortion as it is about fetal personhood. So, the Court, implicitly conceding that its conclusion is unwarranted, simply stipulates the right to abortion.
In the second argument, the Court maintains that as the unborn child becomes more mature the state’s interest in prenatal life increases. For this reason, the Court concludes that at viability – when the fetus can live outside the womb –the state may (though it need not) prohibit abortion, except for in cases in which the life or health of the mother is in danger.
Because “health” is so broadly defined in Roe’s companion decision Doe v. Bolton (1973) that it includes psychological, familial, and emotional health, many have concluded, as I have, that this exception swallows the rule. Setting that problem aside, let’s look at how Blackmun justifies the viability standard.
Depending on a variety of factors, a fetus may be viable – even though it may require technological assistance – anywhere between 20 and 26 weeks after conception. Prior to viability, it requires the shelter and sustenance of its mother’s womb.
Justice Blackmun claims that this physical dependency carries with it moral significance, and thus a “[s]tate regulation protective of fetal life after viability. . .has both logical and biological justification.” “This is so,” he writes, “because [at viability] the fetus presumably has the capability of meaningful life outside the mother’s womb.”
But this is a perfectly circular argument. Blackmun wants to distinguish between non-meaningful and meaningful life for the purpose of arguing that the state only has a compelling interest in protecting the latter when a woman’s right to abortion hangs in the balance. He selects viability, the time at which the fetus may live outside the womb, as the threshold moment when the unborn child is transformed from a non-meaningful to a meaningful life.
But Blackmun justifies viability as that moment by offering this reason: it is at viability that “the fetus presumably has the capability of meaningful life outside the mother’s womb.” But that’s his conclusion as well. So, again, like in the first argument we assessed, Blackmun merely stipulates his conclusion, and provides no actual warrant for it.
In part 1, I explained how the Court’s failure to address the question of the unborn’s moral status reveals Roe’s flimsy jurisprudential foundation. Here, I have shown how two arguments central to Roe’s holding are not based on anything more than unwarranted stipulation.
Thus, Roe is not only a tragedy because it failed to protect the most vulnerable among us, but also because it gave judicial legitimacy to a habit of mind that substitutes rational deliberation with unwarranted willfulness.