Welcome back for the final installment in our series on abortion, in the first installment, I opened with a discussion about abortion in early America, a largely accepted and practiced procedure by wealthy white women. Women who were slaves were forced to carry their children to term, facing the fact that once their child was born it would be whisked away to be sold in the slave markets. During the early days of our nation, white women, and to an extent, slave women, had full purview over all things governing the home front, to include pregnancy and childbirth. Male doctors largely remained outside the practice of women’s reproductive health care, allowing female midwives to dominate that medical area of expertise. In the second installment, I reviewed the ruling in Roe v. Wade, a case brought before SCOTUS after access to abortion had largely been criminalized nationwide. I covered the politicization of abortion access following the Roe ruling and the rise of the pro-life movement with political power. Post Roe, the pro-life movement made political efforts to restrict what was deemed by SCOTUS to be a constitutional right to abortion through the passing of specific and targeted bans and restrictions that made it largely impossible for women, particularly those in less privileged families, to access abortion care.
In this installment, I will review the Dobbs v. Jackson Women's Health Organization (Dobbs) ruling and examine the case both for and against abortion. This installment will end with the opinions and assessments of myself, Carl Able, based entirely on the research conducted over the last few months and tied to my own personal beliefs. The reason for the preface about opinion is that I want to be clear that while I am striving to color outside the political lines, it is important to paint opinions as opinions and not as facts. We are open to debate, to discussion, about the points that we make here on this platform, as such if you wish to raise a concern or want to shine light on facts that may sway our position then please, let us know via the contact form on this page.
So what was the case of Dobbs all about? What caused SCOTUS to override fifty years of legal precedent? If you recall from the previous installment, there were two major rulings when it came to abortion: Roe and Doe. Roe defined a fetus as potential life, not a human being. Roe also set a standard for abortion access at a defined point: not to be limited prior to the end of the first trimester. Doe went further to determine that the state could not justifiably limit abortions if the procedure was sought based on maternal health. In a separate case, Southeastern Pa. v. Casey, SCOTUS held that the protections afforded under the Constitution did not limit bans to the first trimester, instead it allowed for a new standard by which abortion bans could be established: the undue burden rule. (DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 2022)
The Center for Reproductive Rights filed a lawsuit against the state health officer of Mississippi, Thomas E. Dobbs. The lawsuit challenged the constitutionality of Mississippi’s law banning abortions after 15 weeks, a ban that rose out of the Casey ruling. (Dobbs v. Jackson Women's Health Organization, 2022) The Center for Reproductive Rights, in support of the Jackson’s Women’s Health Organization, alleged that the Mississippi law violated the rights of pregnant women established by the precedent set by the ruling in Roe and Casey. (DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 2022) It reached SCOTUS after a district court ruled in favor of the Jackson Women’s Health Organization placing a pause on the enforcement of the Mississippi abortion ban. Mississippi initially contended that the law was consistent with the Roe decision but changed its contention, seeking to overturn the Roe decision completely following the confirmation of Justice Amy Coney Barrett to SCOTUS. (Dobbs v. Jackson Women's Health Organization, 2022) SCOTUS ruled that the decisions in both Roe and Casey were incorrect and that the interpretation of the Constitution by the justices who ruled on Roe and Casey was invalid based on faulty historical analysis. (DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 2022)
In overturning Roe and Casey, SCOTUS considered five factors:
The nature of the Court’s error: The justices who passed the ruling in Roe misinterpreted the historical references of our nation, ignoring the historical context of the rise of legislation restricting abortion access and identifying abortion as “deeply rooted” in American history and traditions. (DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 2022)
The quality of the reasoning: SCOTUS found that Roe established a set of rules that appeared like those of statutes or regulations that would be passed by a legislative body. SCOTUS also found that Roe ignored the state consensus of laws banning abortion in 1868. It was also determined that Roe failed to justify its distinction between pre and post viability abortions. (DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 2022)
Workability: SCOTUS, in reviewing both Casey and Roe, determined that the modification of the standard from trimester based to the undue burden test basis resulted in a vague interpretability of the undue burden test was not capable of drawing a solid line between permissible and unconstitutional. (DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 2022)
Effect on other areas of law: The evaluation of the effects of the decisions in Roe and Casey by SCOTUS was that the decisions distorted many unrelated but important legal doctrines. (DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 2022)
Reliance interests: SCOTUS ruled that overturning Roe and Casey would not impact interests. Based on Casey, SCOTUS determined that returning the ability for the states to regulate access to abortion would not impair or cause detriment to reproductive health because abortions are not spontaneous and as such, affected parties would have time to adjust their plans to account for changes in restrictions. SCOTUS emphasized that while Roe and Casey influenced other decisions, a ruling to overturn both would apply strictly to those cases and would not affect other decisions. (DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 2022)
Based on its findings while reviewing the above factors, SCOTUS determined that it had a clear mandate to overturn Roe and return the debate to the individual states.
The Dobbs ruling was an immense blow to the pro-choice movement, and like the way that Roe invigorated the pro-life movement, injected new motivation to return to the argument about reproductive health. Abortion is an issue based on societal morals, as such access is determined by the morals that a society has. There is no way to find a solution to the argument in three blog posts. Instead, all that can be done is to examine both sides of the argument and put forth a proposition that will spur a conversation to bridge the divide in the hopes of finding common ground upon which the morals of both sides can be respected.
The fundamental argument used to contend abortion access is that abortion is akin to murder. The pro-life movement uses the logic that a fetus is a human being (person), human beings have a fundamental right to life, therefore a fetus has the right to life, if it is wrong to kill a human being (person) with the right to life, then it is wrong to kill an embryo or fetus. (Missouri School of Medicine, n.d.) This logic is based in the fetal personhood argument. Specifically, that the fetus' potential to become a human person and enjoy the valuable life common to human persons entails that its destruction is prima facie morally impermissible. (Manninen, 2007) Arguments used to justify this logic are that the fetus has the capability to feel pain, however, scientifically it has been determined that the neuroanatomical apparatus required for pain and sensation is not complete until about 26 weeks. (Grimes, 2015) Based on the fact that the upper limit worldwide for termination is 24 weeks, and most pregnancies are terminated well before this (Grimes, 2015), the argument on the ability of the fetus to feel pain does not apply. Additionally, the logic used to justify personhood is, itself, flawed. Specifically, that when broken down, the logic in an algebraic formula sounds like this: if X has the potential to become Y, then X is Y and should be treated as such. The problem here is that we don’t apply that logic to other areas where X has the potential to become Y. Take children for example, they have the potential to become adults, yet we treat them as children because of their maturity and growth levels.
Interestingly, the origin of the abortion is murder argument is that it was invented, perpetuated, and executed by male doctors in the mid-nineteenth century in a bid for financial gain and the domination of a market over which, at the time, they had no control. (Patel, 2021) Going back to the first installment you will remember that the AMA, in its arguments against abortion used fetal personhood to paint women seeking abortions as “murderesses devoid of morals, punishing babies for their own failings.” (Patel, 2021)
The pro-choice argument revolves around two key arguments: personal autonomy and maternal health. According to the pro-choice camp, Abortion bans preclude patient moral decision making by implicitly forcing one individual’s morals and views of what is right and wrong onto another person who may or may not share the same views. (Ryan, 2022) The movement argues that there is no single definition of fetal personhood that medical professionals rally around. (Ryan, 2022) Leaning on the moral argument that the only person who can determine fetal personhood is the person in which the fetus lives. (Ryan, 2022) The pro-choice movement employs the logic that only human beings have the right to life, a fetus is not a human being (person), therefore a fetus does not have a right to life, if a being has no right to life, it is not wrong to kill it, therefore it is not wrong to kill a fetus. (Missouri School of Medicine, n.d.) That logic is continued by stating that in certain circumstances the right to life afforded a person may be overridden by other factors, given hypothetically that a fetus is a human with a right to life, its right to life may be overridden by other factors, if a being’s right to life is overridden it is not wrong to kill the being, therefore it is not wrong to kill the fetus if certain factors occur. (Missouri School of Medicine, n.d.)
When it comes to maternal health, the United States is the only developed country with a rising maternal mortality rate that disproportionately affects black women. (Ryan, 2022) The rates are significantly lower in states with protected access to abortion this includes rates in the black community. (Ryan, 2022) A study of maternal death rates between 1998 and 2004, revealed that during that time frame, the risk of death from child birth was 14% higher than death from abortion. (Ryan, 2022) The study also found that the risk of physical and physiological harm was greatly reduced when women were able to gain access to the desired form of abortion. (Ryan, 2022) Pro-life proponents point to health risks associated with abortion as a means by which to claim that abortion is unsafe and harms the mother.
The first is a condition called post abortion syndrome (PAS). PAS is a physiological condition that pro-life proponents point to in which women who undergo the abortion process suffer from depression and anxiety. However, in a Norwegian study to determine if PAS is a certifiable condition, scientists found that the rate of psychiatric contact is similar before and after a first-trimester abortion. This finding does not support theory that there is an increased risk of mental disorders after a first trimester induced abortion.(Mortensen, Pedersen, Lidegaard, Munk-Olsen, & Laursen, 2011) Because of the lack of evidence supporting the validity of PAS, the condition does not appear in the DSM-V (the handbook of mental health), and the link between abortion and mental health problems is dismissed by organizations tasked with mental health protection. (Grimes, 2015) Studies have also determined that whilst women don’t generally suffer long-term mental health effects related to the abortion, short term guilt and sadness was far more likely if the women came from a background where abortion was viewed negatively, or their decisions decried. (Grimes, 2015) In other words, post abortive depression is directly related to the way that the mother was raised to view abortion.
The second is called the abortion-breast-cancer conjecture (ABC). During the political debate that followed the ruling in Roe, the pro-life movement pointed to a rise in breast cancer as being associated with the rise in access and conduct of abortive procedures.(Grimes, 2015) The arguments made employed studies that found direct links to breast cancer and abortion. Those studies were conducted using the case-controlled method, deemed to be a methodologically unsound method because of its inherent risk of recall bias. (allcountries.org, n.d.) Historical cohort studies, on the other hand, have been deemed to be more methodologically sound. Two major studies have been carried out using this methodology, and neither found an increased risk of breast cancer associated with first trimester abortion. (allcountries.org, n.d.) The WHO, the National Cancer Institute, the American College of Obstetricians and Gynecologists and the Royal College of Obstetricians and Gynecologists support a position that claims that abortion increases the risk of cancer are not credible. (Grimes, 2015)
The third condition is that abortion reduces fertility. This condition rises out of factual scientific studies linking an out-of-date surgical procedure, the dilation and curettage (D&C) method, which had an inherent but small risk of scarring that could potentially lead to complication. (Grimes, 2015) That technique has become obsolete, replaced with a much safer and effective suction method in the early 1970s, a method that was recommended by the WHO for all surgical abortions. (Grimes, 2015)
Those are the arguments, so the question is, what do we do with all that information? At first glance it seems like the pro-life argument has no legs to stand on from a scientific point of view. The pro-choice movement holds to the personal autonomy argument, their stance holds more to a scientific basis but at the same time, morality plays a part in the argument in favor of choice.
The problem is that morality often trumps science. If a person has a moral objection to something, it is nearly impossible to overcome that objection with science. Morals are learned, morals are emotional, and morals are a founding principle of how people live their lives. That fact alone is what lends to the difficulty that lies in the argument about abortion access. Discussions about abortion often trigger an emotional response that cause both sides to completely shut down and stop listening to each other.
Personally, I ascribe to the belief that abortion is wrong, not because of the science, but because of my belief that every fetus has the potential to be the next Einstein, or Thomas Eddison, and that abortion ends that potential. However, I also ascribe to the belief that a woman has the right to determine what she wants to do with her body. Just as every individual makes daily choices, those choices are made with the knowledge that choices have consequences. I believe that abortion should be held in the same regard, we should allow individuals to make choices understanding the consequences of those choices.
My recommended solution is that we recognize the fundamental right to personal autonomy, however, recognizing potential, we evaluate when that right infringes upon the right of another person. In the case of abortion, I argue that we set the line at which an abortive procedure can no longer be conducted at the point at which a fetus is viable outside the womb. Now respecting the personal autonomy of the mother, we should establish that after viability, all procedures should be conducted in a manner which seek to preserve the lives of both the mother and the child. If the mother does not want to carry her child to term then she should be allowed to have an early induced labor, delivering the child so that it has a chance to live while respecting the autonomous choice of the mother. In accordance with our laws, the burden of proof would lie on the accuser to demonstrate that any instance in which a child dies after viability occurred with intent to harm.
So far we have focused on the rights of the mother, but the discussion around abortion often ignores the father. What happens when a father does not want to be a parent either because he does not feel prepared or does not believe he would be a good parent. In this instance I propose that we provide the father with a way to back out of his parental responsibilities both moral and financial. The ability to back out would be restricted to 21 weeks, after 21 weeks, the father would be held responsible for the care of the child. Understanding that the mother can choose to deliver early after viability, this “paternal option” would provide time for the mother to decide if she wants to carry her child to term knowing that she would be the sole parent or wants to deliver early and waive her responsibilities as well.
My proposal is not all encompassing, and there will no doubt be alternative arguments, but as of this time that is my stance and my recommendation to bridge the gap between pro-life and pro-choice.
This closes out the final installment on our opening series. There is far more to discuss on the topic, far more progress to be made, but for now this is the end of the Crayon Box Politics analysis of abortion. Coming up we will delve into our national healthcare system; the research has begun, and I will be trying a new process of blog writing. Starting next week I will post a weekly blog with my thoughts on my research from the previous week. The podcast will be published monthly as a means by which to bring all the research together. Don’t forget to listen to the Podcast and like, comment, and share from your favorite podcast platform. You can share this blog too! The more people know about Crayon Box Politics, the more we will be able to initiate conversation and truly find a way to bridge the gap and color outside the political lines.
Works Cited
allcountries.org. (n.d.). Retrieved October 2022, from Induced abortion does not increase breast cancer risk: https://www.allcountries.org/health/induced_abortion_does_not_increase_breast_cancer_risk.html
Derbyshire, S. W. (2016, April 15). Can fetuses feel pain? British Medical Journal, 332(7546), 909–912.
Dobbs v. Jackson Women's Health Organization. (2022, June 27). Retrieved from American Civil Liberties Union: https://www.aclu.org/cases/dobbs-v-jackson-womens-health-organization
DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL., 19–1392 (United States Supreme Court June 24, 2022).
Grimes, D. R. (2015, August 12). A scientist weighs up the five main anti-abortion arguments. The Guardian.
Manninen, B. A. (2007). Revisiting the argument from fetal potential. Philos Ethics Humanit Med, 7. Retrieved from https://doi.org/10.1186/1747-5341-2-7
Missouri School of Medicine. (n.d.). (U. o. Missouri, Producer) Retrieved from Abortion - MU School of Medicine: https://medicine.missouri.edu/centers-institutes-labs/health-ethics/faq/abortion
Mortensen, P. B., Pedersen, C. B., Lidegaard, Ø., Munk-Olsen, T., & Laursen, T. M. (2011, January 27). Induced First-Trimester Abortion and Risk of Mental Disorder. New England Journal of Medicine(364), 332-339.
Patel, N. (2021). The Insidious Origins of the “Moral” Argument Against Abortion Rights. Georgetown Journal of Gender and the Law, 22(2).
Ryan, I. (2022, September). Why the Post-Roe Era Requires Protecting Conscientious Provision as We Protect Conscientious Refusal in Health Care. AMA Journal of Ethics, 24(9), 906-912.
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