Roughly 50 years ago a Planned Parenthood director and an affiliated doctor were arrested for distributing contraceptives and providing advice on how to use them (their clinic, actually, was opened exactly 51 years ago to the day of this post). The constitutionality of the law eventually made its way to the United States Supreme Court, where, in Griswold v. Connecticut, 281 U.S. 479 (1965), it was struck down.
In its ruling the Court enunciated for the first time the "right to privacy" -- a right also called the "right to be let alone." The right to be let alone is the right to be let alone from government interference, to maintain one's own counsel, body, and activities -- sphere inviolate from the government -- a sphere of privacy. (N.B., while one dissent in Griswold accuses the courtof inventing the right of "privacy" based on "natural law" as "privacy" is not a word used in the Constitution. The Court, though, does not claim it is "natural law" but premises its view but on a "penumbra" of privacy the protections for individuals provided in the 1st, 4th, 5th, 6th, 7th, and 14th amendments.)
Eight years later in Roe v. Wade, 410 U.S. 113 (1973), the the United States Supreme Court relied on Griswold's "right to privacy" to hold that women have a right to abortion before their fetus is viable. Roe does not hold that there is a universal right to abortion or abortion at any time. It relies on Griswold to hold there is a sphere where citizens should be free from governmental interference and balances this freedom against a right to life it looks to when a fetus may be viable.
Roe's rationale should be trumpeted by the "tea party" and libertarian types in the U.S. since being free from government interference is their mantra. They're not keen on it. I'm left questioning the sincerity of their views.
Republicans, however, misrepresent the holding in Roe. They take it as holding there is a universal right to abortion. Indeed, they now formally take the opposite extremist view that women should have no right to have an abortion under any circumstances. They seek a constitutional amendment banning abortion.
Their position is a moralistic one gussied-up with the claim that "life begins at conception." You cannot legislate biology. When they say "life begins at conception" they misunderstand the basics of conception and the natural world.
The notion that there is a black and white line where "life" begins is simply untrue. Both the sperm and ova are alive, of course, before conception. Life does not "start" on conception. When the DNA of sperm and ova merges it is not a new creature. Not yet. Many steps still have to take place before a cell or group of cells capable of independently surviving exists. It has no features. What will be the subsequent being is determined a great deal by what happens in utero. Indeed, genes are not predestination, but set a range of possibilities that depend on subsequent cues to happen or not happen. This is known as epigenetics. While it is now beyond dispute that "ontogeny does not recapitulate phylogeny," it is indeed difficult to tell a human zygote and embryo from those of some other animals. Gills slits form and disappear. A tail forms and disappears. See generally the images here. Are these a distinct human life?
In any regard, early on the zygote merges with the woman's uterus, functions as a part of her body, and depends on her, as part of her, for survival. There is no independent creature; it is an outgrowth of her body and merged with her blood stream. Eventually, after months, it is capable of independent survival, if given extraordinary health care after leaving the womb. To say that a new life begins at conception is as mistaken as saying that life begins at conception. There is no biological event where life distinctly begins.
When does a fetus advance to the point where we should recognize it as an individual human warranting protection? Roe v. Wade holds that when a zygote or fetus cannot survive out of the womb even with extraordinary care, then societal interest in protecting the life is de minimis, and a woman's right to control her own body is paramount. Roe estimates this to be the first trimester, and the federal government and States cannot forbid a woman from terminating a pregnancy during this period . During the second and third trimesters the state's interest in protecting life increase (one might say they quicken, but that's a bad pun though to an old term indicative that human life begins at conception is not a historical notion). A nascent "right to life" exists when a fetus can survive and is weighed against the personal rights of the mother, with the law steadily becoming more deferential to protecting life as the prospects for life increase. The crude balancing of Roe makes extremists on all sides of the abortion debate unhappy, but it is a rational result.
The thing is, though, that it is Republican and conservative extremists that seek to overturn Roe, whether it is through court packing, or constitutional amendment, or some bizarre form of "nullification." Their views are usually based on natural rights views they derive from their religion, the same type of views the dissent in Griswold derided. It's the same side that supported the law banning any birth control.
Permitting abortion in circumstances where an embryo or fetus is not viable does not require anybody to have an abortion. Those who oppose abortion per se oppose an exercise of freedom, though they say they oppose freedom to protect a life to be. The extremist conservative views on this subject are wrong factually, logically, and legally.
Parts of this post previously appeared in my mega post Why I am Not a Republican.
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