Guest column: Abortion, boundaries, and Roe v. Wade

This is a guest commentary by Tom Louderback.


As you’ve probably heard already, the Kentucky General Assembly has slotted a dogmatic constitutional amendment on abortion to our ballot for 2022. This has little to do with Roe v. Wade as written, as far as I can tell. It’s mostly a political tactic to boost the turnout of anti-abortion voters, and also voters confused by cynical political spin that purposely mischaracterizes pro-choice as “abortion even in the ninth month” as Mitch McConnell did ad nauseam last year.

So, this appears to be the perfect time to refresh our memories of what Roe v. Wade accomplished.

The historians would likely remind us that Justice Harry Blackmun and his colleagues sought to balance our freedoms with our responsibilities when they issued this momentous decision decades ago. 

What Roe did was to legalize abortion on demand until “viability”; after that point, consultation with a physician is needed. This arrangement effectively puts the burden of the law on the physicians once viability is reached. It also calls on society and our government to guarantee the civil rights of two persons from there on, and as long there is a medical determination of viability.

Justice Blackmun, especially, deserves our respect for working so hard to balance the Roe v. Wade decision. Historians say he spent the summer before he drafted the decision studying medical ethics cases in the Mayo Clinic library. He knew the Clinic well, as it turns out, having served as their legal counsel several years before that. It’s said that it wasn’t his intention to “legislate from the bench.” Rather, he was responding to the plaintiff’s request for a practical remedy.

Perhaps no one explained the dilemma better than Carl Sagan and Ann Druyan did in their famous essay, The Question of Abortion: A Search for Answers. “In contemplative moments, nearly everyone recognizes that the issue is not wholly one-sided….. And the issue surely touches on deep questions: What are our responsibilities to one another?…….Where are the boundaries of freedom? What does it mean to be human?”

For one thing, medical science has found that a fetus in the late stages of pregnancy reacts to sound and it generates brain-waves. Most scientists believe consciousness has begun here. That means third-trimester abortions, especially, test of the limits of abortion. We definitely need science to identify such limits.

This might surprise you, but the abortion question is not technically a matter of ethics. That’s because most everyone believes in our autonomy to make our own medical decisions. It’s also because most everyone believes in our civil rights to life, liberty, and the pursuit of happiness. The controversy is about the boundaries.

Scientists are confident by and large that human life does not begin at conception. Any sperm or egg cell is alive, to be sure, but there are many more essential attributes of human life. Besides, full development of the embryo into a human being cannot be taken for granted. Miscarriages were far more common that live births before the emergence of modern pre-natal care in the early 20th Century.

It’s also worth remembering that St. Augustine and St. Thomas Aquinas did not consider early-term abortion to be murder. Aquinas even allowed that an embryo does not look like a human being. The Catholic Church, itself, permitted scholarly debate on the issue for centuries (until 1869.)  The theologians named the subject “ensoulment.” They wanted to know why God would recall so many souls in the early stages of pregnancy. For some, the logical conclusion was that the soul must be arriving later in pregnancy.

Today, scientists know that billions of neurons in the brain are the apparatus for thought. These neurons begin to function as a brain when they begin to link up, which doesn’t happen until around the 24th week. This is also where Justice Blackmun and his colleagues drew their line in Roe V. Wade. The use of the same marker was mostly coincidental, since the justices considered different criteria which they named “viability.” For one, the justices had learned that the lungs were usually developed at that stage. The fetus can breathe by then.

Opinion polls consistently indicate 55 to 60% of Americans support Roe v. Wade and do not want it overturned. At the same time, only 15 to 20% want to allow abortion on demand throughout pregnancy. I take this to mean that most people like Roe v. Wade because they think it is practical, and that it steers clear of dogma, whether religious or ideological.

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