Perhaps it is time for the U.S. Supreme Court to acknowledge and protect the humanity of another category of dehumanized individuals, as it did for Black people and women in America not so long ago.
Rehumanization needs to occur for unborn humans, if not for all then at least for those who no longer require their mother's bodies to sustain themselves. Surely, the same Constitution that afforded women the fundamental right to abort nonviable unborn children can guarantee life and liberty for viable humans in utero.
Regardless of whether Congress codifies the 1973 decision in Roe v. Wade, or expands the Supreme Court’s bench, Judge Amy Coney Barrett’s confirmation will likely keep abortion, particularly later-term abortion, on the high court’s radar. In 2016, she said:
"I don't think the core case, Roe's core holding that women have a right to an abortion, I don't think that would change. But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that will change."
Early vs. late-term abortions
Barrett is in sync with most Americans on this topic. The majority support a woman’s right to end her pregnancy during the early weeks of gestation, but the majority oppose elective later-term abortion, abortions performed on the viable unborn for broad health reasons.
The number of abortions performed on unborn children at or near viability is not infinitesimal. Reports show approximately 10,000 to 15,000 such abortions occur after 20 weeks annually in the United States. The known primary reasons for later-term abortions do not include fetal anomalies or risks to women’s physical lives. And some studies found that live birth is actually safer for women than later-term abortion.
This is undoubtedly true for the youngest human involved, regardless of gestational age at the time of termination. Science demonstrates that fetal life is biological human life, and that older fetuses are capable of living outside the womb, separate from their mother, namely viable humans in utero.
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Yes, Roe established for women a near unfettered right to abort pre-viable fetuses under the Constitution’s due process clause, but it did not regarding the termination of viable unborn children. Overturning Roe would not render illegal any state statute permitting elective post-viability abortion, and codifying Roe would not legalize it.
Rather, Roe allows states to proscribe post-viability abortions, with life and health exceptions. What constitutes health exceptions is discussed in the 1992 case Planned Parenthood of Southeastern Pa. v. Casey, and they are narrow. But it is often easier to hide behind vague shadows than to be straightforward and honest, especially if catering to special interests. Maybe this is why state statutes fail to clarify the particular health reasons for which women are permitted to end the lives of their viable fetuses.
Constitution's protection of all life
How might the Supreme Court alter U.S. abortion jurisprudence regarding very late-term abortions if the Senate confirms Judge Barrett? The Supreme Court has never recognized a constitutional right to life or liberty for any unborn child. A Supreme Court with Barrett on the bench, however, just might by simply recognizing the plain text of the Constitution’s amendments — and evolving science, as Sen. Kamala Harris asked of her during the recent confirmation hearings in the context of climate change.
Regarding the viable unborn, only life and liberty rights under the Fifth and 14th Amendments could prevent Congress and every state from legislating their elective destruction.
Barrett says she takes a textual, originalist approach to constitutional interpretation, much like the late Justice Antonin Scalia: “So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it.”
Both the text and the original intent of the words of the Fifth and 14th Amendments support a right to life for viable unborn human life and maybe even the pre-viable unborn.
Some scholars assert that the Constitution’s framers intended “all living, individual members of the human race were intended to be protected … in certain core human rights, including the right to life and to the equal protection of the laws.” Pro-life feminist Frederica Mathewes-Green sums up the principle, “Any society that makes mother and child enemies is slowly committing suicide.”
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The most profound question is really whether our constitutional guarantees of life and liberty are inclusive enough to include a most vulnerable minority population in America today — children within women’s wombs capable of surviving outside women’s bodies. In the words of Mahatma Gandhi, “If we are to reach real peace in the world, we shall have to begin with the children.”
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This article originally appeared on USA TODAY: Amy Coney Barrett, abortion: Viable fetuses are protected under law