The Fetal Viability Solution
The solution I propose is a compromise based on the recognition of fetal viability—the basis of the Roe v. Wade decision. But it is a compromise which is a higher-level integration of apparent opposites. It is a resolution which acknowledges the truth of each party to the dispute while eliminating their errors.
Medically speaking, a fetus cannot live outside its mother before the third trimester. During the first and second trimester, medical resources cannot sustain the life of a fetus if it is removed from the womb; the mother is the only resource capable of sustaining its life. By the third trimester, however, the fetus has developed enough as an individual so that modern technology can sustain it artificially, outside the womb.
I propose that the third trimester be accepted by both sides as the legal dividing line in the question of allowing or prohibiting abortion (and if medical technology succeeds in lowering the limit for fetal viability to an earlier time, the legal dividing line should move with it). There can be no question that if a baby can live outside its mother, it has legal status as a citizen, with all the rights inherent to that status. Its foremost right is the right to life. Abortion in the third trimester must be considered a violation of that right (with partial-birth abortion, which involves sucking out the brain of a infant while it is being born, as the most heinous form of premeditated murder of an innocent person).
Prior to that time, it should be legal for a mother to abort a child. She will have to live with her conscience about it, but she should not be forced to bear an unwanted child by prohibiting to her the medical procedures which can remove the condition. Her reasons for abortion may be utterly superficial and selfish, ranging from vanity to inconvenience to unwillingness to take on parenthood; they may also be more serious, such as rape, incest, or danger to her own life or the well-being of her family. Those reasons, however, have no bearing on the situation because the mother does not have an obligation to explain her decision to anyone or submit to anyone’s authority over her, so long as she is of legal age. She would be exercising her fundamental right under American law to dispose of her property, however much she might later regret her decision (and research shows that most women do indeed experience deep regret over having an abortion.
At the same time, Pro-life advocates should continue their programs of education and providing alternatives to abortion. The slaughter of millions of unborn babies is an enormous tragedy with consequences bearing on the very existence of America. Life cannot be held so cheaply as to murder babies. All that infanticide could be easily avoided through simple measures of voluntary birth control (including abstinence in the case of unmarried women) by people whose consciences are awakened to the sacredness of life, so that no unwanted children are conceived in the first place.
There is an effort in Congress to end abortion by legislatively defining unborn children as persons from the moment of conception and who are therefore entitled to constitutional protection. The strategy is to make an end run on the U.S. Supreme Court’s decision in Roe v. Wade. In that decision, the Court acknowledged: “If…personhood [for the unborn] is established, the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [Fourteenth] Amendment.” The Fourteenth Amendment reads: “…nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.”
Such an end-run effort is, from my point of view, misguided and retrograde. It is misguided because it ignores and overrides the sacred principle of a woman’s right to her own body as private property. It is retrograde because it is as unworkable as the Eighteenth Amendment attempt to prohibit liquor and will result in an abortion mill industry equivalent to the stills and speakeasies of the Roaring Twenties.
(To be concluded)