By Ronald Fischer
A recent law enacted in New York allowing for an unborn baby to be killed hours or even minutes before delivery, and recent comments by Virginia Gov. Ralph Northam in support of a similar law proposed in Virginia (which didn't get enough votes to pass), suggesting that the law would allow a baby to be killed even after birth, have sparked considerable outrage by not only those who oppose abortion, but also by those who would consider themselves pro-choice.
While a majority of Americans are in favor of keeping abortion legal during the first three months of pregnancy, a 2018 Gallop poll revealed that 65 percent of those polled believe abortion should be illegal after the first three months of pregnancy, and a huge 81 percent favored making abortion illegal in the last three months of pregnancy.
The recently enacted New York law protects a woman's right to what are commonly referred to as "late-term abortions." These are abortions of unborn children who are clearly viable, meaning they could live outside the womb with or without medical assistance. While plenty of discussion has ensued over the barbaric nature of these laws from the perspective of the unborn child, it may be of benefit to consider what might occur if these laws are challenged in court and accepted for review by the U.S. Supreme Court.
In 1973 the Supreme Court in Roe v. Wade (in a 5 to 4 decision) held that a woman has the constitutional right to abort her unborn child. In reaching its decision the court specifically rejected the argument that the unborn child had a constitutional right to life from the point of conception. The court stated "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." However, the court went on to hold that after the first trimester (three months of pregnancy) the state has an interest in protecting the unborn child by enacting reasonable regulations concerning abortion. The court held that after the second trimester the state's interest in protecting the unborn child could rise to the level of prohibiting abortions under certain circumstances.
Twenty years after Roe was decided, the Supreme Court in Casey v. Planned Parenthood Federation of America moved away from the trimester framework adopted in Roe and focused instead on viability, giving the state significant authority to restrict and indeed, under certain circumstances, prohibit abortions after the unborn child was viable. While the vast majority of states, including North Dakota, have enacted laws restricting a woman's unfettered right to an abortion, there are some that have not. In addition to New York and the District of Columbia, there are seven states that do not have any laws prohibiting abortion: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont.
What makes the recently enacted New York law noteworthy from a legal perspective is the fact it was expressly done in anticipation that the Supreme Court, given its current composition of justices, might reverse Roe and Casey, leaving the issue of abortion up to the various states as it had been prior to Roe. That position assumes the Supreme Court will leave in place its decision in Roe that an unborn child does not have the constitutional right to life.
However, it is my belief that sound and persuasive arguments can be made, given the scientific advances in the fields of fetal development, neurobiology, perinatology, and human genetics in the 46 years since Roe was decided, that the "unborn child," using the Supreme Court's language in the 2007 Gonzales case (upholding a federal law prohibiting partial birth abortions), is a unique human - particularly after viability - entitled to constitutional protection. If the Supreme Court were to hold that a viable unborn child has a constitutional right to life, then any contrary state laws, such as the recent New York law protecting a woman's right to abortion at any time prior to birth of the child, would be overturned and declared unconstitutional.
Ronald F. Fischer, of Grand Forks, has been a lawyer in North Dakota since 1980, with expertise in civil rights and constitutional law.