Religious conservative lawmakers seem hellbent on prompting legal challenges to the abortion issue until the U.S. Supreme Court is forced to rethink its 1973 Roe v. Wade decision. They'd better be careful what they wish for.
A new spate of abortion laws attempts to define embryonic life for the purpose of outlawing abortion, but they also force the question: At what point does life begin? The question has been asked philosophically countless times. But from a lawmaking standpoint, it remains as ill-defined today as ever. If Supreme Court justices pose this question, lawyers for the "pro-life" faction could have a nightmarish experience defending their answer.
Lawmakers in Missouri and other states have attempted to legally define viability as the moment a fetal heartbeat can be detected, which typically occurs six to eight weeks from conception. Under a new law signed by Gov. Mike Parson, no abortions may legally occur after that, including for rape and incest victims, unless the mother's life is in danger.
The detectable heartbeat defines the embryo as a living human being under these laws. Doctors who perform abortions after eight weeks of pregnancy can be held criminally responsible. Alabama would put them on trial for homicide.
Supporters of such draconian laws credit President Donald Trump as their biggest champion for having tipped the Supreme Court's conservative balance enough to overturn Roe. But in 1973, the court deliberately established a much more amorphous definition of when life begins.
"We need not resolve the difficult question of when life begins," the Roe decision states. "When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."
The Trump administration might not turn out to be such a champion after all if the court looks at its record as a potential weather vane.
On Feb. 22, a Honduran woman was under detention by Immigration and Customs Enforcement when she went into premature labor at 27 weeks of pregnancy. The baby was born dead, even though the mother had received two medical screenings during detention and was declared healthy.
ICE nevertheless stated that this didn't qualify as an "in-custody death," which put the Trump administration on record as saying that, even at six months, a fetus in the womb doesn't count as a life. Of course, ICE made that determination not out of consideration for future Supreme Court challenges but because it wanted to avoid adding to its already embarrassing death-under-detention statistics.
In other words, when forced to choose, the Trump administration opted for political expediency. After 46 years of punting the question, the definition of life in the womb remains as much a political football as ever.
REPRINTED FROM THE ST. LOUIS POST-DISPATCH