Why Science Strengthens the Pro-Life Argument
Can science undo the havoc that Roe v. Wade and Planned Parenthood v. Casey wreaked on America? The country’s leading pro-life leaders believe so. “Unique From Day One: Pro-life Is Pro-science,” the theme for this year’s pro-life March for Life, focuses on the natural alliance between mother and child.
This year the March for Life will showcase experts on modern ultrasound and other tools of fetal monitoring and the benefit that these tools offer to expectant parents. These scientific and technical advances reveal the vitality of the developing child at the earliest stages in pregnancy. The galloping sound of a baby’s heartbeat first heard at seven weeks gestation is a great comfort to any new mother. And as each successive week passes, pregnant women are now able to track their baby’s – and their own – growth. Each revealed milestone adds to expectation. Similarly, the wonder of life’s first days is within our grasp. Groups like Contend Projects are working hard to spread awareness among youth – future mothers and fathers -- of the biological science of human embryology. They hope to educate more people on the science of when a human being begins to exist.
Science reveals the mother-child bond -- a bond which is decidedly not adversarial (at least not until the teen years). Our legal tradition, by contrast, currently considers a woman’s developing child as adverse to her liberty. This shouldn’t be surprising. Courts resolve cases and controversies between adversaries. One side wins, one side loses. But when it comes to abortion, the law – unlike science -- is getting farther and farther from catching up with the truth.
It has been almost 50 years since the Supreme Court created a woman’s constitutional right to an abortion in Roe v. Wade. Writing for the majority in Roe, Justice Harry Blackmun attempted to balance the “liberty interests” of a pregnant woman to terminate her pregnancy and the state’s interest in protecting the “potential life” of her unborn child. Using arbitrary trimesters that track the progression of a woman’s pregnancy, he set forth guidelines for permissible limitations on abortion.
Roe’s trimester system quickly proved unworkable, however, and the court replaced it in the 1992 Planned Parenthood v. Casey decision. Casey retained Roe’s holding “that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” But instead of Blackmun’s approach, the court adopted the “undue burden” standard to review abortion regulations. “A finding of an undue burden,” wrote Justice Sandra Day O’Connor for the court plurality, “is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Casey’s focus on the burdens to a woman’s liberty and away from the stages of human development was presented as a pragmatic solution insulating judicial review from advances in medical science. But the problem with pragmatic solutions is that they generally don’t work. Since Casey, abortion advocates have argued that any abortion restriction constitutes an undue burden. They even opposed the federal ban on the gruesome partial-birth abortion procedure on these grounds. The response of the Supreme Court came in its 2007 Gonzales v. Carhart decision. The high court upheld the ban, but not because partial-birth abortion is a grave offense against humanity. Rather, the Supreme Court said the partial-birth abortion ban simply did not constitute an undue burden on a woman’s liberty.
Under Roe, courts used a trimester approach to balance the interests of a woman against the state’s interest in protecting her child. After Casey, courts evaluate the extent to which a regulation burdens a woman’s liberty. Both standards end up pitting mother against child. Science, however, offers a better answer to this issue by focusing our attention on the strength of the mother-child bond.
Perhaps the Supreme Court will incorporate new science and revise how courts consider abortion regulations and limitations. But even if the court fails to do so right away, Americans can still look to science -- the hard science of ultrasounds, fetal monitoring and embryology -- to see the irrefutable connection between mother and child. And that it is a mutually enriching bond that ought to be supported, not severed.