Why Roe v. Wade should be overturned

[muon2]

I think there is another basis to question the basis for the Row decision. Let me start with this quote from Blackmun's decision:

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At this point the decision was reviewing historical precedent from ancient times to the present time of the decision. Contrary to some commentators, common law did address abortion, and it was not based on viability, but on a defintion of when life begins. As is clear in the quote, early common law set that point as the time of quickening, a reasonable standard that could be measured at the time with no instruments.

The protection of prenatal life shows up in this passage of the decision:

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The court seems to recognize that there is a fight between the old common law beginning of life and the view that life begins at conception. In either case the court seems to acknowledge that the beginning of life is an important concern. Another key disctinction here is thant the recognition of interest in the start of life has now been replaced by the phrase potential life. The next key part follows later where the decsion construes "person".

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At this point the historical documentation from prior to the 19th century seems to be disregarded. The common law meaning of persons from the beginning of life is now skipped, and with it any debate about where life begins. Shortly the decision returns to the beginning of life with this passage:

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This is the first insatnce where viability is fully elevated as definition of life, and specifically given a date. Even though the court goes on to say that the law puts life at live birth, this nuance remains in its decision.

The court then sets two benchmarks, based on best medical knowledge.

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I note that both of these points are due to medical science as it existed in 1973. This first benchmark is based on the relative mortality of abortion compared to childbirth, and this changes with advance in medical science. The second benchmark for viability also has changed substantially since 1973 as medical technology improves.

In my scientific view the decision is weak because it freezes facts that change with the advancement of medical technology. The court recognized that most viewed the debate about the beginning of life as falling between conception and quickening before the middle of the second trimester. Even so, the decsion took a specific dated scientific fact that placed viability outside this range, with knowledge that the science might change.

IMO, a stronger basis would be to invoke a definition of the beginning of life referencing best technology available, rather than a specific week from 1973 science. That would remain consistent with preexisting common law and provide for future improvements in technology to measure the onset of distinct human life.

[muon2]

I am not sure if you got my point, and I apologize because when I wrote my cut-and-paste post it was late. I think an important point is that the court was searching for a point in a pregnancy when the states have a compelling interest in regulating abortion. I note that they passed over quickening, and settled on viability, primarily based on medical thinking of the day.

What they tacitly acknowledge is that there is a point of compelling state interest, and it is influenced by current medical thought about the onset of life. At the time of Roe, medical understanding of the brain was limited, and the fetal brain was truly an unknown. Imaging techonolgies in the last 25 years have greatly expanded the scope of knowledge of the brain, and its activity is an important medical determinant of life. Braindead was not a meaningful word when I grew up in the 60's, but brain activity was a central piece of the medical debate over Terry Schiavo.

I contend that if Roe was decided today, and the underlying principles were unchanged, the court would select a much earlier date for state control. I even think that viability would not be the factor, but brain activity would be. That sets the date for state control three months earlier than in Roe.

The key point in my post is that the decision set benchmarks based on specific science from 1973. Had only the principles been articulated, the benchmark end of the second trimester would have been migrating earlier as medicine advanced. The court recognized that the state has an interest in protecting the life of the unborn, it just didn't know what balance point to choose. If left to advancing modern medicine that balance point might well be much earlier in 2005.

[muon2]

I think an important point is that the court was searching for a point in a pregnancy when the states have a compelling interest in regulating abortion.

Yes, I understood that part. But my question is this: Which clause of the Constitution requires states to have a "compelling interest"? IMHO, there is no justification for the courts requiring state laws to pass such a standard. The only possible justification I can think of is substantive due process, but that doctrine is a separate matter which I addressed in my original post, up for debate.

Thus, even if at the common law a fetus is not a person, even if a state has no interest in regulating abortions, it is still constitutionally permitted to restrict them, because there is nothing in the text of the Constitution that specifically states otherwise.

I don't necessarily disagree with you. But, given that defining boundaries for state interest occurs with some frequency by the court, it's not clear to me that this becomes a basis for substantially changing the original ruling in Roe.

I think that an untested weakness in the original decision is its reliance on out-of-date facts. An attack that allows the court to hold to principles, but finds the facts wanting is consistent with past rationale for overturning rulings.

[muon2]

A theme of agument on this thread has been directed at why Roe should not have been decided as it was in the first place. That is a different question than one seeking a reason to overturn Roe.

Historically, the court has been loath to directly reverse a decision based solely on the original argument. Instead the court has sought some other factors that allow the reversal. Typically those facts involve a change in the underlying facts, or a perceived change in the facts due to changes in society.

I would be curious to read not just why the original decision was flawed, but how the court reaches a significant change in its initial ruling Roe, or its modifications under Casey. That was the intent of my analysis.