In Roe, the Supreme Court spoke of “potential life” and said that it need not decide the supposedly “difficult question of when life begins.” Even though Justice Blackmun for the Court did not know, the science of embryology knew the answer to the question then and now: “the sex of the new individual . . . is determined at fertilization” (Langman’s Medical Embryology, p. 41). The ruling of Roe, together with its companion case, Doe, made abortion available throughout the nine months of pregnancy, the actual equivalent of infanticide, in the last months.
The contemporary frequency of parents, especially mothers, killing their children—not only newborn babies but toddlers too—is a new phenomenon. Does this have something to do with the relentless loosening of abortion laws in America since Roe v. Wade? We live in an era where we pretend that we do not know when life begins, but we certainly do know when it ends and how to end it.
In light of the passage of the New York state abortion statute exactly one year ago that brought the issue of “infanticide” into national consciousness for the first time, the fundamental role that abortion has played for a long time in the moral and political division of the country—its importance rivaled only by Brown v. Board of Education—and the certainty that abortion will be an even more important issue in the November 2020 presidential elections even than it has been in the past, this essay attempts a review of the legislative, judicial, political, and social developments of recent years in regard to abortion.
The precipitating event has been the New York abortion statute enacted after the capture by the Democratic party of the New York state senate in the 2018 elections, ending thirty years of Republican control of that body, to go along with the Democrats’ long-standing control of the state Assembly, and with Democratic governor Andrew Cuomo the Democrats controlled the New York state government completely. The party made abortion its first order of business when the new legislature convened in January 2019. The motivation, as explicitly stated by Gov. Cuomo, was to codify Roe v. Wade into New York state law because of the fear that the Supreme Court might overturn it.
In Roe, the Supreme Court spoke of “potential life” and said that it need not decide the supposedly “difficult question of when life begins.” Even though Justice Blackmun for the Court did not know, the science of embryology knew the answer to the question then and now: “the sex of the new individual . . . is determined at fertilization” (Langman’s Medical Embryology, p. 41). The ruling of Roe, together with its companion case, Doe, made abortion available throughout the nine months of pregnancy, the actual equivalent of infanticide, in the last months. That fact was scrupulously ignored and suppressed by the mainstream media and by feminist and other progressive advocacy groups. Until 2019, it had never become a public and national issue. Roe invented a new constitutional right, available only to women: a “right of privacy” then and now restated as a woman’s “right to control her body.” In the 7-2 Roe majority were Justices Willam Douglas, Thurgood Marshal, William Brennan, Potter Stewart, Harry Blackmun, Lewis Powell, and Warren Burger, the last five of whom had been appointed by Presidents Eisenhower and Nixon.
Roe had ambiguously allowed a state, “in promoting its interest,” in what it called “the potentiality of human life,” to “proscribe” abortion “subsequent to viability,” that is, the point at which a baby may be expected to live outside the womb. The Court said that “Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. . . . [t]he infant has a 90% percent chance of surviving” if born at “6.5 to 7 months” after fertilization. But the exceptions of not only the “life” of the mother but also her health” essentially undermined the “proscribing” authority of states. In Roe’s companion case, Doe v. Bolton, the Court and concurring opinions extensively discussed and made clear that the “health” basis for an abortion includes “mental” health, that is, “health in the broadest medical context” and “psychological as well as physical well-being,” and that it applied throughout the nine months of pregnancy. Likewise, in the later abortion case, Casey (1992), the Court, with similar equivocation had recognized a state’s “power to restrict abortions after viability” and a state’s “legitimate interests” in “the life of the fetus,” up to and even including a “legislative ban on nontherapeutic abortions.” But the Casey court followed up on the Roe court’s smokescreen by providing that a state law may not place an “undue burden” of a woman’s right to abortion supposedly before viability, but other places in the opinion used language to establish that as a standard throughout pregnancy, that is, after “viability.” And this was more explicitly enlarged in the Whole Woman’s Health case (2016).
From the beginning of the abortion era, many states reacted to Roe by attempting to restore some version of their abortion laws, and with the motivation of trying to establish some kind of protection for the independent, sensate reality of the unborn child. (“During the fifth month, movements of the fetus can be felt by the mother.”). In the 47 years since Roe, the Supreme Court has handed down approximately 20 major abortion decisions, all prompted by the continuing rejection by the states of Roe. There is no other issue like it.
New York and Virginia in 2019
Even after Roe, the state of New York continued its outright prohibition of abortion after 24 weeks, except when the woman’s life was in danger. With the leadership of Gov. Cuomo, and the fear in progressive circles that the Supreme Court might overturn Roe, the specific purpose of the new statute is to repeal that provision of the law. The new wording establishes the right to abortion at any time if there is an “absence of fetal viability” or to protect the woman’s “life or health.” Thus, with decades of practice beginning with Roe and Doe that a woman’s “health” includes mental health and with the vague concept of “fetal viability,” it is clear that New York has established a right to abortion at any time during pregnancy. And as New York state senator, Liz Krueger, a main sponsor of the New York bill, said, abortion “later in pregnancy,” can be indicated by a “woman’s mental health.”
Nonetheless, with the support of the New York and national media, Gov. Cuomo himself authored an opinion in the New York Times that disguised and denied his own explicit purpose when he said that the new law “does not allow abortions minutes before birth, nor does it allow third-trimester abortions ‘for any reason’,” and said that “third-trimester abortions are extremely rare, making up only about 1 percent of all abortions.” He also disguised that misrepresentation by changing the subject from human life to attacking “the religious right” and professing his own Catholicity and stating that “most Catholics are pro-choice.”
Gov. Cuomo’s new law is in keeping with the state code of New York which, unlike three-fourths of the states, has no criminal statute outlawing the fetal homicide that is the result of a violent attack on a pregnant woman.
Likewise, and at the same time and for the same purpose, a proposed Virginia state law, strongly supported by Democratic governor, Ralph Northam, a pediatric neurologist by trade, had the specific purpose of extending abortion into the third trimester. Its specific language provided that abortion “after the second trimester of pregnancy” was permitted if a physician determines that the continuation of the pregnancy would be “likely” to “impair the mental or physical health of the woman.” In introducing the bill into the Virginia legislature, Virginia state Delegate Kathy Tran said that the bill would be “changing the standard” for third trimester abortions and would allow abortion “through the third trimester all the way up to forty weeks” and when a woman was “dilating.” Gov. Northam went further and said that “[t]he infant would be delivered; the infant would be kept comfortable; the infant would be resuscitated if that’s what the mother and the family desire, and then a discussion would ensue between physicians and the mother.”
Now, the Virginia Democrat party, via the 2019 state legislative elections, controls the entire Virginia state government. Like New York in 2019, the Democrats have made abortion their first order of business. Although final details of different versions of the two legislative houses have not been worked out, the bills are directed at eliminating state restrictions, such as who may perform abortions and parental consent, on abortion. With Governor Northam, a new abortion law is certain to be enacted. Supporters have said that they want to make Virginia the new “safe haven” for abortion. Significantly and unlike 2019, Democrats avoided any legislative measure intended to ensure that abortion is available until birth.