“If the unborn is not a human person, no justification for abortion is necessary.
However, if the unborn is a human person, no justification for abortion is adequate.” -Gregory Koukl

While I would like to nuance this quote a little bit, I agree with it principally and think it cuts to the heart of the abortion debate. As many of you know, abortion is a particularly hot topic right now—perhaps as hot as it has been since Roe v. Wade was decided forty-eight years ago. So, if there is ever a time to beef up on your grasp of the subject, it may be now.

Before I list and answer some interesting questions on the matter, I will briefly explain how abortion is once again near the center of the national stage and what is at stake in the months ahead.

The Texas Abortion Law Case

This past Monday, the Supreme Court heard close to three hours of oral arguments regarding Texas’s recent abortion law. Commonly misunderstood, the Texas law makes it illegal to perform an abortion, and to aid and abet anyone in having an abortion, after cardiac activity is detected. This typically occurs around the six-week mark.

To be clear, the law does not criminalize the prohibited behavior. Rather, it imposes civil liability on abortion providers and those who aid and abet women having an abortion, but not the women themselves. That is, women cannot be sued under the law; however, it is undeniable that women are effectively prevented from having abortions after the six-week mark in most instances. Exceptions exist for the life or health of the mother, but not for rape or incest.

On its face, the law clearly runs afoul of Roe v. Wade. The Texas legislature, however, attempted to circumvent Roe by banning state officials from enforcing the law. Instead, it tasked citizens to do so—regardless of their connection, or lack thereof, to the abortion or the woman having it.

In response to the law, abortion providers in Texas sued the state and quickly petitioned the U.S. Supreme Court to block the law on the basis that it contravened Roe. The high court, however, declined to do so on the grounds that Texas may not be the right party to sue since it did not have enforcement authority; rather, as noted above, the citizens possessed the authority.

Not to be deterred, abortion providers, as well as the federal government, re-petitioned the Supreme Court to block the law. This time, they argued that Texas could not lawfully immunize itself from a lawsuit by leaving enforcement strictly to its citizens.

This was the issue primarily before the Court during Monday’s oral arguments, not abortion rights themselves. Many would have found the arguments dull or esoteric. During arguments, for example, “a 1908 case called Ex Parte Young kept coming up.” (NYT, “What is Ex Parte Young, much-discussed in the Texas abortion case?”).

The Mississippi Abortion Law Case

Exactly one month after oral arguments in the Texas case, the U.S. Supreme Court will hear oral arguments in a case out of Mississippi styled Dobbs v. Jackson Women’s Health Organization. In that case, the issue is whether Mississippi’s ban on abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities is unconstitutional. According to Roe and its progeny, it undoubtedly is. The lower courts ruled as much, including the very conservative Fifth Circuit. So, why did the U.S. Supreme Court take the case, then? Many think it is because “Roe Is as Good as Gone,” as one recent NYT headline put it. A sizeable contingent of pro-lifers, however, are not so sure (myself included). We have been disappointed before.

With that, let me pose and answer some interesting questions about abortion.

What did Roe actually hold? The issue in Roe was whether the U.S. Constitution provides a right to an abortion. Prior to Roe, there was no such right. In Roe, the U.S. Supreme Court ruled that women do in fact have a right to an abortion by virtue the Fourteenth Amendment’s Due Process Clause and, more specifically, the fundamental “right to privacy” that the Court had previously inferred from it.

In addition to recognizing a woman’s right to choose, Roe also recognized the states’ “legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life.” With this in mind, the Court created a trimester framework. Under the framework, the state’s interest in protecting the women’s health was recognized at the outset of the second trimester. Its interest in protecting pre-natal life was recognized at the outset of viability (i.e., often near the start of the third trimester).

During the first trimester, then, women would have an absolute right to an abortion that could not be regulated. Beginning with the second trimester, women would still have a right to an absolute right to an abortion; however, the state could impose regulations (not restrictions) if they were reasonably related to the mother’s heath. Beginning with viability, which the Court noted “is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks,” the state could regulate or even ban abortion except where necessary to preserve the mother’s life or health.

Is Roe still the standard? For the most part. In the landmark 1992 case of Planned Parenthood v. Casey, the Court affirmed Roe’s “central holding” in a “bitter 5-to-4 decision.” In other words, it affirmed that “that viability marks the earliest point at which the” a state can prohibit abortion.” Casey, 505 U.S. at 835. However, it also ruled that “Roe’s rigid trimester framework is rejected.” Id. at 837. Moreover, it held that a state has a legitimate interest “in potential life throughout pregnancy,” not just beginning in the second trimester. Id.

In doing so, the Court imposed a new “undue burden” standard. In other words, while the states could adopt regulations to, say, ensure that the woman’s choice is informed by subjecting her to a 24-hour waiting period, any such “measures must not be an undue burden” on her right to an abortion up until viability. Id. at 878.

It is important to note, that neither Roe nor Casey required states to regulate or ban abortion post-viability. In fact, several states permit late-term abortions, a few without restriction.

What was the state of abortion law immediately prior to Roe? It varied state to state. According to the pro-choice Guttmacher Institute, “legal abortions were already available in 17 states under a range of circumstances beyond those necessary to save a woman’s life.”

What was the state of abortion law in early-America? It appears to have mirrored English common law, which criminalized abortions after quickening, i.e., the first movement in utero. Roe, 410 U.S. at 132. At the time, quickening was thought to have occurred around the four-month mark. Id. This being said, in those days “abortion was extremely rare and unmarried women facing crisis pregnancies could rely on society and the courts to force the father into doing the right thing.” (World News Magazine, “Did Colonial America have abortions? Yes, but …”).

In 1803, England made it a capital crime to abort a quick fetus and “provided lesser penalties for the felony of abortion before quickening.” In America, Connecticut was the first state to enact prohibitive abortion legislation. It did so in 1821. New York was the second to do so in 1828, except for instances jeopardizing the mother’s life. “By the end of the 1950’s,” however, “a large majority of [states] banned abortion . . . unless done to save or preserve the life of the mother.” Roe, 410 U.S. at 140.

If Roe is overturned, what would then be the state of abortion law? It depends. If Roe was overturned in its entirety, the power to govern abortion would lie entirely with the states. Put differently,“[t]he States [then] may, if they wish, [continue to] permit abortion on demand, but the Constitution [would] not require them to do so.” Casey, 505 U.S. at 979 (Scalia, J., dissenting).

According to the pro-choice Guttmacher Institute, “26 States Are Certain or Likely to Ban Abortion Without Roe.” The article is highly misleading because the word “ban” is implicitly defined to mean virtually any restriction on abortion. For example, under the heading “States Likely to Ban Abortion,” it cites to Montana because it recently restricted “abortion at 20 weeks of pregnancy.” The articles notes that just five states would have a “Near-total ban.” According to pro-life attorney David French, “ending Roe would cut nationwide abortions by less than 13%.” (National Review, “In a Post-Roe World, Pro-Lifers Would Still Have a Lot of Work Left to Do”).

What is the state of abortion law in Europe? It is apparently far more conservative than it is in the U.S. According to the Lozier Institute, “47 out of 50 European nations limit elective abortion prior to 15 weeks,” whereas “zero out of 50 U.S. states have currently enforceable limits on abortion at 15 weeks.” Moreover, “[n]o European nation allows elective abortion through all 9 months of pregnancy, as is effectively permitted in several U.S. states, including California, Massachusetts, Maryland, and New York.”

While those of a pro-choice persuasion may view the Lozier Institute as an undependable source, its findings appear to comport with mainstream or liberal sources. See, for example, Wikipedia’s “Abortion law” page, which cites to Oxford University Press when stating, “When it comes to later-term abortions, there are very few [countries in Europe] with laws as liberal as those of the United States.” See also EURACTIV, “Abortion rights: An open wound in many European countries” (“Most EU countries allow abortion on demand up to 10 or 14 weeks of pregnancy, including France, Belgium, Denmark, and Greece”).

What is the state of abortion law in the rest of the world? According to a University of Georgia Law Professor, who clerked for Justice Anthony Kennedy, the U.S is “one of only six nations on the list allow[ing] unrestricted abortion to the point of viability.” The other five are “Canada, China, Netherlands, North Korea, . . . and Vietnam.” This should shock the conscience. Many countries ban abortion except when necessary to preserve the mother’s life. “Performing an abortion because of economic or social reasons is accepted in 37% of countries. Performing abortion only on the basis of a woman’s request is allowed in 34% of countries.” (Wikipedia, “Abortion Law” (citing 2020 U.N. report)).

What are the primary reasons women have abortions? According to a study published by the Guttmacher Institute, the results were as follows:

The reasons most frequently cited were that having a child would interfere with a woman’s education, work or ability to care for dependents (74%); that she could not afford a baby now (73%); and that she did not want to be a single mother or was having relationship problems (48%). . . . In both surveys, 1% indicated that they had been victims of rape, and less than half a percent said they became pregnant as a result of incest.

When do women have abortions during the gestational period? According to the CDC’s Abortion Surveillance 2018 report, “A total of 619,591 abortions for 2018 were reported to CDC from 49 reporting areas.” The Guttmacher Institute, however, reports significantly more abortions per year (in 2017, they reported 862,320 compared to the CDC’s 612,719). As to when they occurred, we will use the CDC’s findings coupled with the Guttmacher Institute’s numbers:

• 77.7%: performed at ≤9 weeks’ gestation (670,022)
• 14.5%: performed at between 10–13 weeks’ gestation (125,036)
• 6.9%: performed at 14–20 weeks’ gestation (59,500)
• 0.9%: performed at ≥21 weeks’ gestation (7,760)

According to NCBI, “a fetus resembles the mature human form at about week 9 of gestation during embryogenesis.” Click here for Google images of fetuses at nine weeks’ gestation.

Did the Hippocratic Oath address abortion? A Texas abortion provider recently said that the restrictive Texas abortion law “has made [abortion] providers fearful of being sued for treating patients and holding true to the Hippocratic oath.” Perhaps she meant some new or Texas version of the Hippocratic Oath. The original Oath, as noted by the Supreme Court in Roe:

varies somewhat according to the particular translation, but in any translation the content is clear: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,” or “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.”

How do Planned Parenthood, anti-racism, and pro-choice intersect? Planned Parenthood is by far the leading provider of abortions in the U.S. By some accounts, it conducts approximately 35–45% of all U.S. abortions annually. (See Heritage Foundation, “Planned Parenthood Sets New Record for Abortions in a Single Year”).

According to a recent NYT article by Ross Douthat, the organization, however, “has eugenic ideas close to its root, and while [its founder Margaret] Sanger herself was pro-contraception rather than pro-abortion, her successors championed both abortion rights and global population control policies that were racist by any reasonable definition.”

Douthat goes on to note that after the legalization of abortion in the U.S., “white births dipped only slightly . . . while the nonwhite birthrate dropped by 15 percent.” Today, “the abortion rate is five times for African Americans than for whites.”

Douthat is far from alone in his observations. In a 2020 article published by the National Center for Biotechnology Information (NCBI), it is noted that:

Black women have been experiencing induced abortions at a rate nearly 4 times that of White women for at least 3 decades, and likely much longer. The impact in years of potential life lost, given abortion’s high incidence and racially skewed distribution, indicates that it is the most demographically consequential occurrence for the minority population. The science community has refused to engage on the subject and the popular media has essentially ignored it. In the current unfolding environment, there may be no better metric for the value of Black lives.

In fact, “[a]ccording to the Department of Public Health of every state that reports abortion by ethnicity, black women disproportionately lead in the numbers. For example, in Mississippi, 79 percent of abortions are obtained by black women; in Washington, D.C., more than 60 percent; in Georgia, 59.4 percent.” (Center for Urban Renewal and Education, “The Effects of Abortion on the Black Community”).

According to leading anti-racist activist Dr. Ibram X. Kendi in his book “How to Be an Antiracist” (which according to Publishers Weekly was the fourteenth best-selling book of 2020), every policy is inherently racist or anti-racist. There are no neutral policies. More specifically, he writes:

A racist policy is any measure that produces or sustains racial inequity between racial groups. An antiracist policy is any measure that produces or sustains racial equity between racial groups. . . . There is no such thing as a nonracist or race-neutral policy. Every policy in every institution in every community in every nation is producing or sustaining either racial inequity or equity between racial groups.

Thus, it very much appears that the policy of abortion is systemically racist, at least by Dr. Kendi’s definition. It appears to produce as large of, if not a greater, disparate impact on African-Americans than incarceration and police brutality. Perhaps this is part of the reason why African-American Supreme Court Justice Clarence Thomas recently drew parallels between Roe and the abominable Dred Scott decision.

Is there a consensus on when life begins? In Roe, the state argued that its interest in protecting pre-natal life existed throughout a pregnancy, not merely after viability. The Court addressed this contention by writing:

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.

Roe, 113 U.S. at 159. This is an interesting remark for multiple reasons. First, courts exist for the very purpose of resolving disputed questions, including very complex ones. In a countless number of cases—involving a myriad of different fields of expertise—opposing litigants will proffer conflicting expert testimony. That is, one side’s expert says this, while the other side’s expert says that. Courts, then, are required to sort through the conflicting testimony, make credibility determinations, and arrive at a conclusion—whether in the fields of medicine, engineering, law, etc.

Second, if there was no consensus of opinion as to when life began when Roe was decided in 1973, there very much appears to be a consensus now. As far back as 1981, after experts in embryology and human development testified before a U.S. Senate Judiciary Committee, the committee reached the following conclusion:

Physicians, biologists, and other scientists agree that conception marks the beginning of the life of a human being—a being that is alive and is a member of the human species. There is overwhelming agreement on this point in countless medical, biological, and scientific writings.

Peter Singer, a pro-choice Princeton University bioethicist and philosopher, also agrees:

[T]here is no doubt that from the first moments of its existence an embryo conceived from human sperm and eggs is a human being. . . [T]he same is true of the most profoundly and irreparably intellectually disabled human being , even of an encephalic infant—that is, an infant that, as a result of a defect in the formation of the neural tube, has no brain.

This is because, as stated by embryologist E.L. Potter, “Every time a sperm cell and ovum unite, a new being is created which is alive and will continue to live unless its death is brought about by some specific condition.” Unlike a sperm or an egg or a cell, the embryo is developing into a mature human being.

In a 2008 abortion case styled Planned Parenthood v. Rounds, the Eight Circuit found that it was not an undue burden on women to require abortion providers to state that the fetus is a “living, separate, whole human being.” The court noted that this is a biological fact. For support, the Court highlighted that even Planned Parenthood’s very own expert witness, bioethicist Paul Root Wolpe, Ph.D. of the Emory Center of Ethics, executed an affidavit stating:

To describe an embryo or fetus scientifically and factually, one would have to say that a living embryo or fetus in utero is a developing organism of the species Homo Sapiens which may become a self-sustaining member of the species if no organic or environmental incident interrupts its gestation.

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In closing, we need to seriously ask ourselves if true social justice is standing for women’s rights or the unborn’s rights. As Mother Teresa once noted, “Abortion is profoundly anti-women. Three quarters of its victims are women: half the babies and all the mothers.”

In closing, here a link to a short video featuring adorable Richard Scott William Hutchinson, “who holds the world record for being the most prematurely delivered baby to survive.” He weighed 11.9 ounces and was born at a gestational age of 21 weeks, 2 days. A few months ago, he joyfully celebrated his first birthday.