In the late '60s and early '70s, Americans engaged in a vigorous state-by-state debate about whether abortion should be legal. From 1967 to 1973, 19 states liberalized their abortion laws. With its decision in Roe v. Wade, the Supreme Court short-circuited that debate.
Now, the Court has agreed to reconsider its earlier ruling. Many Court watchers predict it will overturn Roe. And many people mistakenly believe that such a ruling would outlaw abortion. Certainly, both Planned Parenthood's coathanger ads and the pro-life movement's jubilation could lead the casual observer to such a conclusion.
In reality, overturning Roe would put the abortion question back where it belongs—in the legislative arena. Regardless of what one thinks of the result, the 1973 decision represents an egregious example of judge-made law. Not every big question has a constitutional answer. The Constitution doesn't discourse on when life ends, for instance. Neither does it lay out trimesters and viability standards. It may speak to the right of privacy, but no matter how hard you twist, it will not define with any precision those "persons" mentioned in the Fourteenth Amendment.
And defining personhood is the crux of the abortion question. To decide whether abortion should be legal, and under what circumstances, we have to come up with a legal definition of when an individual exists and is therefore entitled to the legal protections accorded individuals in a free society. This is a legal definition—not a moral, philosophical, or religious one. It will not, cannot, and should not encompass every dimension of the abortion issue. It will not tell a pregnant woman whether she should have an abortion, only whether she may do so without violating the legal rights of another person.
If the Supreme Court does overturn Roe v. Wade, it will restore the state-by-state debate that ended abruptly in 1973. But that debate will not pick up where it left off.
Since Roe—and to some extent because of Roe—the abortion debate has been completely polarized. On one side, pro-choice groups argue not only that a woman has a constitutional right to have an abortion but that the public is constitutionally obligated to pay for it. They oppose waiting periods, parental consent, or any other legal requirements that might weaken abortion's claim as an absolute right on a par with—indeed, more protected than—the right to free speech or a speedy trial.
On the other side, pro-life groups claim that life begins at conception. By their lights, morning-after pills are tantamount to murder. Women who have abortions are baby killers. Doctors who perform them are running death camps. At best, they declare, pro-choicers are like antebellum slave owners; at worst, they're the latest incarnation of Mengele.
Squirming uncomfortably amid all the absolutist rhetoric is the general public. Depending on how you word the poll, you can demonstrate widespread support for or opposition to abortion. The truth is, the public is ambivalent. A million and a half abortions a year seems like an awfully high figure, a sign of too-casual regard for nascent life. But there can't be that many murderers walking our streets, either. When George Bush rambled about adoption and stammered when asked whether women who have abortions should be considered criminals, sophisticates scoffed at his lack of polish. But his muddled responses captured the mixed feelings of many Americans.
A renewed legislative discussion of abortion offers the opportunity to wrest the hard questions away from the fanatics who currently frame the terms of the debate. What, then, should we look for in a standard for determining when abortions are allowable?
First, we must recognize that this issue does indeed pit important individual rights against each other. On the one hand, the pregnant woman has a right to privacy, to control her body. On the other, the fetus has—at some stage—a right to life. Few people, to take an extreme case, would argue for an absolute right to abort a child a minute after the onset of labor.
Second, a legal standard must provide a bright line. Everyone must understand when abortions are permitted and when they are not.
Third, the standard must be robust in the face of changing technology—for both practical and philosophical reasons. It is absurd to define personhood by some standard that depends on the latest medical gadget.
Fourth, the standard must capture something innately human. And, finally, it must not rely on divine revelation—a murky guide at best and not one about which we have any hope of reaching broad agreement.
The three standards currently offered in the political debate—viability, birth, and conception—fall short of these goals. Technological progress, for instance, undermines viability but also conception. Suppose we perfect cloning. Then every cheek cell has the same potential to produce human life under hospitable conditions as does every fertilized egg. But do we pass laws against scrubbing your face? Of course not.
To find an appropriate legal rule for determining when life begins, the place to start is with the rules that determine when life ends. Like abortion laws in the pre-Roe era, these rules are established by the states. And they are agreed upon after a long process of vigorous, but usually measured, discussion that takes into account scientific knowledge, technological change, and respect for individual rights. Generally, the standard is that human life ends when human brain activity, measured by an EEG, ceases.
A perfectly symmetrical EEG standard for fetal life poses some problems as a legal guideline. It could prove tantamount to a conception standard, since you can pick up something at four to six weeks of pregnancy—before many women even realize they're pregnant. But because the brain is relatively undeveloped, early-stage EEG patterns differ significantly from both adult readings and those of later-term fetuses.
A more politically feasible standard, which is also philosophically attractive, is to declare that life begins at 20 weeks of pregnancy. That stage represents the earliest operation of the human brain system critical to cognition and awareness—the cerebral-reticular complex. After this stage, the fetus begins to demonstrate both behaviors and EEG patterns we generally recognize as human.
"After 30 weeks, there is no question that the cerebral-reticular complex, although immature, is structurally operational, certainly in terms of sleep/wake patterns, eye movements, and the ability to learn and respond to complex environmental stimuli," notes Julius Korein, a neurology professor at New York University Medical Center. "Being conservative, we could estimate the onset of the life of a human being—as reflected by the organizational structure of the critical system of the brain and its incipient function—to be after 20 weeks."
This 20-week rule would recognize the conflicting rights at issue in abortion. True, it wouldn't satisfy the absolutists. And it would involve a certain arbitrary line drawing.
But that is what the law does. It draws lines. In a free society, it draws them in the way that best protects individual rights. We can never fully resolve the fundamental questions that abortion raises. But we can draw reasonable legal lines consistent with broadly accepted principles. A reconsideration of Roe gives us the opportunity to try.
This article originally appeared in print under the headline "Reconsidering Roe".