Sue Lani Madsen: Abortion - drawing a line in the sand

The U.S. Supreme Court has agreed to consider a Mississippi law limiting abortion after 15 weeks. Mainstream media will dutifully follow the AP Style Guide, calling it “a major rollback of abortion rights.” But what’s really at stake in Jackson Women’s Health Organization v. Dobbs is a final reckoning on the fatal flaw in the 1973 Roe v. Wade decision. What does viability mean? How and where do we draw the line between life and not life?

Nina Totenberg, legal affairs correspondent for NPR’s Morning Edition, this week described the Roe v. Wade decision as drawing “a legal line in the sand on when states may ban abortion. That line said that pre-viability (in the) first six months of pregnancy when a fetus cannot survive outside the womb, a woman has the right to determine her own reproductive destiny. And that includes terminating the pregnancy. But yesterday (Monday), the court for the first time said it will reconsider where that line is drawn.”

Justice Sandra Day O’Connor wrote a dissenting opinion in a 1983 case testing Roe, pointing out the weakness in the original decision, saying “the Roe framework … is clearly on a collision course with itself … As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”

A normal pregnancy is 36 to 42 weeks. Babies born earlier are the “preemies” in neonatal intensive care, where medical science has made lifesaving advances in half a century. Ask the family in San Diego whose daughter weighed barely more than half a pound at birth in December 2018. Born after only 23 weeks in her mother’s womb, “Baby Saybie” went home healthy five months later. Roe v. Wade arbitrarily set viability at 26 weeks. Science now says 23 and counting down. Artificial wombs have already been used successfully for lambs as sort of a super incubator, and scientists in the Netherlands predict a workable human model in 10 years.

The collision predicted by Justice O’Connor has arrived, and arbitrary numbers will no longer do.

The Mississippi law setting 15 weeks as the point when the human life in a mother’s womb has a right to protection is a number as arbitrary as the original Roe decision. In choosing to hear a case challenging the arbitrariness of the Roe framework, the Supreme Court and Americans in general will be forced to confront questions unanswered in 1973. When does human life begin? And how do we protect the right to life, liberty and the pursuit of happiness for both mother and pre-born baby?

Ultrasound images at 18 to 20 weeks are 99% accurate in correctly determining the sex of the baby and provide 75% accuracy between weeks 11 and 14, according to a 2014 Australian study. The baby’s heart is fully formed by about 10 weeks, although a heartbeat of sorts may be detected as early as five weeks.

In 1979, scientists agreed to a 14-day limit on growing human embryos outside of the womb for research purposes. It wasn’t possible to go more than two weeks in 1979. In 2021, four weeks is a viable research option. There is no bright line in the fetal development spectrum at 4 ½ weeks. Viability is indeed moving closer to conception.

As science continues to push the boundaries of what it means to be human, the questions will be harder. The only line free of shifting sand is the moment when a new DNA string defines a unique human life.

Pro-life activists recognize being pro-life means being pro-woman. Unless – or until – an artificial womb replaces natural motherhood, growing a baby and giving birth remains a female superpower. There is no way of knowing if that defenseless baby in your womb or in your arms will be healthy or challenged, solve problems or create them, grow up to save the world or destroy it. Children born prematurely may live with physical or mental disabilities, at least for now. But disability is not and should never be justification for a death sentence. Neither are poverty or a mother’s unpreparedness. Pro-life feminists are focused on empowering women to embrace their awesome responsibility, whether it leads to motherhood or shepherding a child to adoption.

Science continues to provide new insights into human life prior to first breath. The Supreme Court doesn’t have to overturn Roe v. Wade to be pro-life. The justices merely have to keep up with the science. Calling it a battle over abortion rights is a distraction from the real questions.

Contact Sue Lani Madsen at rulingpen@gmail.com.