The Case for a Law Defining LIFE (to Include time in the Womb) | Eastern North Carolina Now

    I have been reading the current abortion case that has come out of the state of Mississippi and which was heard in oral argument in front of the Supreme Court on Dec. 1, 2021. The case - Dobbs v. Jackson Women's Health Org - centers around a law that the Mississippi General Assembly passed - "The Gestational Age Act" or H.B. 1510) - designed to limit abortions and to protect the life and health of the mother and of course, to address the state's interest in the life of the unborn. The suit was filed by the state's only abortion clinic, alleging that the law violates the abortion rights of the women it serves. The case specifically addresses the "viability rule," which was discussed and which formed a foundation of the ruling in Roe v. Wade (1973). Viability refers to the ability of a fetus to survive outside the womb ("becoming a viable human being"), which was taken to be approximately 24 weeks of gestation. Roe recognized the right of a woman to get an abortion, no questions asked, up until viability.

    Today we recognize that Roe's 'viability line' is arbitrary and in fact, in the face of the growing body of research and knowledge surrounding embryonic and gestational development, is offensive, cruel and unusual, and tortuous to the unborn baby.

    Since 1973, there have been tremendous advances in medical and scientific knowledge, most importantly in studies that have confirmed that a developing fetus is clearly able to feel pain by 15 weeks of gestation and with the development of ultrasound technology (which allows expectant mothers to watch and monitor the growth and development of their unborn babies).

    Here are the medical findings that support Mississippi's law:

  • (1) "Between 5-6 weeks of gestation, an unborn human being's heart begins beating.
  • (2) "An unborn human being begins to move about in the womb at approximately 8 weeks of gestation."
  • (3) "At 9 weeks of gestation, all basic physiological functions are present. Teeth and eyes are present, as well as external genitalia."
  • (4) "An unborn human being's vital organs begin to function at 10 weeks of gestation. Hair, fingernails, and toenails also begin to form."
  • (5) "At 11 weeks of gestation, an unborn human being's diaphragm is developing, and he or she may even hiccup. He or she is beginning to move about freely in the womb."
  • (6) "At 12 weeks of gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken 'the human form' in all relevant aspects. Gonzalez v. Carhart, 550 U.S. 124, 160 (2007)."
  • (7) "The majority of abortion procedures performed after 15 weeks of gestation are dilation and evacuation (D&E) procedures which involve the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb. The Legislature finds that the intentional commitment of such acts for non-therapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession."
  • (8) "Abortion carries significant physical and psychological risks to the maternal patient, and these physical and psychological risks increase with gestational age. Specifically, in abortions performed after 8 weeks of gestation, the relative physical and psychological risks escalate exponentially as gestational age increases.
  • (9) "As the second trimester progresses, in the vast majority of uncomplicated pregnancies, the material health risks of undergoing an abortion are greater than the risks of carrying a pregnancy to term."
  • (10) "Medical complications from dilation and evacuation abortions include, but are not limited to: pelvic infection, incomplete abortions (retained fetal tissue), blood clots, heavy bleeding or hemorrhage, laceration, tear, or other injury to the cervix, puncture, laceration, tear, or other injury to the uterus, injury to the bowel or bladder, depression, anxiety, substance abuse, and other emotional or psychological problems. Further, in abortions performed after 15 weeks of gestation, there is a higher risk of requiring a hysterectomy, other reparative type surgery, or blood transfusion."</li>

HbAD0

    H.B. 1510 would allow a pregnant woman to terminate her pregnancy before 15 weeks of gestation. But after 15 weeks, a pregnant woman can only get an abortion for a documented medical emergency or for a severe fetal abnormality. Mississippi asserts that it has the right, under the Tenth Amendment and as a federated and sovereign state, to regulate abortions and to further its interest in the health of the expectant mother and also in the new life that has been created in a woman's womb. "It is troubling to Americans of good faith and conscience that federal courts, without any basis in constitutional text or original meaning can restrict the states in their ability and authority to regulate in the area of abortion [when there is express wording provided in the Tenth Amendment]," commented federal Judge Ho.

    The federal district court held against the validity of "The Gestational Age Act" and sided in favor of the abortion facility, Jackson Women's Health Org, rationalizing that under controlling legal precedent, Mississippi's 15-week 'viability rule' is unconstitutional because it would "ban pre-viability abortions." (Mississippi, through its attorney general, is challenging Jackson Women's Health's ability to even bring the suit in the first place. It did not allege that the law violates their own constitutional rights, but rather it violates its clients' rights. And that, according to the attorney for the state, Scott Stewart, presented a clear conflict of interest. The abortion clinic improperly hijacked the women's rights as a means to overturn a regulation that burdens their business, their bottom line, by prohibiting late-term abortions).

    The 5th Circuit Court of Appeals affirmed the lower court's ruling but had some serious criticisms of how it reached its conclusion and how it framed its rationale. Judge Ho said he was "deeply troubled by how the district court handled the case." The district court's opinion, he explained, "displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.... The district court's opinion disparages the Mississippi legislature and smears Mississippi legislators by linking House Bill 1510 to the state's tragic history of race relations while ignoring abortion's own checkered racial past. It is troubling that that federal courts, without any basis in constitutional text or original meaning can restrict the states in their ability and authority to regulate in the area of abortion."

    So, in granting review to Mississippi and agreeing to hear the case, the Supreme Court opined that it is well past time for the Court to revisit the wisdom of the bright-line viability rule.

    The Supreme Court granted certiorari to Mississippi, giving the state a chance to articulate its case before the high court. The reason it granted review is because the justices believe that there are "many good reasons to revisit the bright-line rule (of Roe) concerning viability of unborn life."

    In the important case of Gonzalez v. Carhart (2007), which addressed partial-birth abortion procedures, the Supreme Court recognized that an unborn child "is a living organism while within the womb, whether or not it is viable outside the womb." As a result, the Court concluded, "the child is entitled to be respected for the dignity of its human life." Furthermore, in Gonzalez, the Court recognized that States have a legitimate interest in regulating abortion - in protecting the life and health of the mother and in protecting the life of the unborn.

    What about viable alternatives to abortion? Why does no one recognize that with a pregnancy, there are actually two lives. Why hasn't any court recognized this, the most central issue at the heart of abortion? The issue of alternatives to abortion was brought up repeatedly during oral argument by Justice Amy Coney Barrett, a Trump appointee:

    "So petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child after [birth], and I think the shortest period might be 48 hours if I'm remembering the data correctly. It seems to me, seen in that light - both Roe and Casey emphasize the burdens of parenting. And insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women's access to the workplace, and to equal opportunities, it's also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy - why don't the safe haven laws take care of that problem?

HbAD1

    It seems to me that it focuses the burden much more narrowly. There is without question an infringement on bodily autonomy, for which we have another context like vaccines - however, it doesn't seem to me to follow that pregnancy and then parenthood are all part of the same burden, and so it seems to me that the choice, more focused, would be between say the ability to get an abortion at 23 weeks, or the state requiring the woman to go 15, 16 weeks more, and then terminate parental rights at the conclusion. Why didn't you address the safe haven laws and why don't they matter?"


    Justice Barrett wasn't satisfied with the answer that the attorney for Jackson Women's Health gave. She raised the issue of adoption a second time: "Actually, as I read Roe and Casey (Planned Parenthood v. Casey, 1992), they don't talk very much about adoption. It's a passing reference that means out of the obligations of parenthood."

    By raising this option, Barrett had taken direct aim at Casey, a decision that reaffirmed Roe while injecting an equality principle into the right to abortion by explaining that the burdens of parenthood diminished women's personal and professional opportunities. She suggested that with the expansion of adoption in the US, the ruling in Casey is actually ripe for reversal.

    What about states enacting laws to serve their own particular views on regulating abortion, such as a "definition of life" law that defines life as beginning at some point during gestation? There are many different views on the right to have an abortion, including no right to an abortion, and shouldn't each state, through their government and through the voice of the people, decide on the particular approach to take. I would argue that a perfect way to regulate abortion and to respect the life of the unborn is to ask the state legislatures to pass a bill that defines life, and defines it to include time in the womb. I'm not saying necessarily that life has to be defined at conception, as Roman Catholics believe, but there should be a reasonable point in gestation when the fetus has the necessary functions and features that define life. A sample "Definition of Life" Bill is provided below.

    Roman Catholics believe that a new and unique human being is formed at the moment of conception when two independent cells (one from mom and the other from dad), incapable on their own of creating new life, merge to form a single fused cell with a distinct DNA identity and then becomes capable of growing into a unique new individual human being.

    Who speaks for the unborn? It must be the people and it must be the government, whose representatives take an oath to uphold and defend the Constitution, the Bill of Rights, the Declaration of Independence and all the values and principles they represent.

    Reference: Dobbs v. Jackson Women's Health Org, petition to the Supreme Court to be granted a Writ of Certiorari - chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fwww.supremecourt.gov%2FDocketPDF%2F19%2F19-1392%2F145658%2F20200615170733513_FINAL%2520Petition.pdf&clen=32278337&chunk=true

    NORTH CAROLINA "DEFINITION OF LIFE" ACT

    SECTION 1. DEFINITION OF LIFE.

    (A) Roman Catholics believe that life begins at the moment of conception. They believe that a new and unique human being is formed at the moment of conception when two independent cells (one from mom and the other from dad), incapable on their own of creating new life, merge to form a single fused cell with a distinct DNA identity and then becomes capable of growing into a unique new individual human being.

    (B) Whether or not a woman or under-age female believes she is carrying a "life" in her womb depends upon her state of mind: If she wants a baby and if she is happy to be pregnant, then she believes instinctively that she is already a "mother" and that what is growing inside her is definitely a new human life. If she does not want to be pregnant, if she does not want to be a mother (for any of a number of reasons), then what she is going on in her womb is nothing more than a nuisance - just a growing mass of cells, without life. One believes in dignity and the other does not.

    (C) The bottom line is that a pregnancy, at least from a certain point in gestation, involves the life, the dignity, and the rights of two human beings. It cannot be just the right of the mother that carries the day and dictates what is to be done with the pregnancy and the life or death of the unborn. Morality, decency and humanity (and Biology as well) must require us to accept this and respect it.

    (D) The "viability rule," as recognized by the outdated landmark abortion case Roe v. Wade (1973) refers to the gestational age at which a prematurely born fetus/infant has a 50% chance of long-term survival outside its mother's womb. In Roe, "viability" was understood to mean 24 weeks of gestation. The ruling in Roe gave women the absolute right to an abortion, no questions asked, up until the 24-week-old mark. That viability line is arbitrary and unsound. In fact, in the face of the growing body of research and knowledge surrounding embryonic and gestational development, it is offensive, cruel and unusual, and tortuous to the unborn baby. As the State of Mississippi has alleged in its case before the Supreme Court (argued Dec. 1, 2021), "the time is ripe for the old rule of Roe v. Wade to be reversed." And the Supreme Court justices, in granting review, indicated that they believe that there are "many good reasons to revisit the bright-line rule (of Roe) concerning viability of unborn life."

HbAD2

    (E) In the whole discussion of abortion and unwanted or unplanned pregnancies, no one, and certainly not the Supreme Court or other federal court, has addressed a very important issue - alternatives to an abortion; the opportunity to preserve life while not being forced to be a parent.
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