The History
Illegal abortions took a huge toll on women for years, killing some and rendering many infertile. With the sexual liberation of the ‘60’s, pressure mounted on Congress to legalize this medical procedure. But they couldn’t get the job done, leaving it to the courts to see if a constitutional right existed to support abortion on demand.
Unfortunately, there is no such right in the Constitution. The 14th Amendment doesn’t actually confer a right to privacy nor does the 16th really address the right. Weighing the rights of a woman versus an unborn child is a difficult matter.
In 1973, SCOTUS ruled that the right existed, all the while considering it problematic. Pro-choice legal scholars and even many Supreme Court justices questioned the legality. However, at that time, a fetus really had no chance at life outside the womb until the 3rd trimester, which is as far as the right extended. Almost 50 years later, this is no longer true due to significant advances in medical science. We know much more about fetal viability and also, how fully developed a child is as early as 14 weeks.
The Complexity
The court tends to give a lot of weight to prior decisions (stare decisis) and except in rare circumstances, doesn’t want to overturn a prior court’s ruling. You have to consider this as you see how they assess the case. Interestingly, as the Left often cites European law as a standard to which we should hew, most countries rule abortion to be illegal after 13-15 weeks, which is all the Mississippi law proposes.
We also have to consider other factors, the most critical of which is the welfare of the child. I’ve been pro-choice forever (though not in favor of very late-term abortions except when the child has such serious health issues as to make viability or good quality of life unlikely). But I also believe every child should be wanted. Yes, you can tell a mother that she can adopt out her child, but how do you make her care for the fetus she doesn’t want? And what do you do when a child is pregnant? I worked at Planned Parenthood for a number of years as a pregnancy counselor and I saw teenagers come in. Some wanted their baby, but did not have the capacity to provide the care the child required.
At that time, amniocentesis was the only way to determine genetic health and it pushed decisions into the 2nd trimester. Medical science is better now, so we can determine if the fetus is healthy and, in many cases, treat it in utero (or remove it and repair damage and reinsert the child into the uterus). Also, birth control can be obtained for free and home testing is easy. There ought not to be a lot of excuses as to why someone would need an abortion in the 3rd trimester except for risk to maternal health.
What Must Happen Now
It's not easy to decide between the rights of two people. But this isn’t a decision that should have been left to the courts. Prior to Roe v. Wade, states made their own decisions, legislatively, as to the legality of abortion and how long one had to make a decision. As there is nothing in the Constitution about the federal government ruling on this, states should have that right.
But if the federal government, now a behemoth wielding all kinds of unconstitutional powers, wants abortion to be legal across all 50 states, the answer is simple. Pass a law. Don’t put the courts in the position of ruling on this. It’s the job of Congress to get this done, if they believe it is the right thing to do.
As part of the assessment, contact the medical community and understand from experienced OB/GYNs the viability of fetuses and their recommendations on how long into the pregnancy abortion should be available. Do it right at the federal level; take on the responsibility and pass a law. I’m betting that Congress won’t do it; voters are conflicted on this issue and the politicians don’t want to face their judgment on election day.
They did the same dodge with extending marriage to gay couples. It's time to stop deferring their duty. I don’t think the government should be involved in marriage except in enforcing the marriage contract, but that’s an issue for another day.
