Camille Pauley, cofounder along with Fr. Spitzer of Healing the Culture, urges Supreme Court to use Dobbs to dump an “archaic judicial artifact” of Roe v. Wade.
The Supreme Court’s December 1 oral arguments in the case of Dobbs v. Jackson Women’s Health Organization generated no small amount of commentary. As in every high-profile case, the questions and comments from justices have been dissected in detail, as court observers try to predict if a majority of justices are willing to overturn the 1973 Roe v. Wade decision.
I won’t make predictions about the fate of Roe. But I can say with confidence that the Dobbs case will move the issue of “personhood” to the center stage of the abortion debate. In other words, at what point during a pregnancy do we recognize a preborn child as a “person” who has legal status with rights that must be protected by law?
The Mississippi law at issue in the Dobbs litigation proposes an answer of sorts: it prohibits elective abortions after an unborn child has reached a gestational age of 15 weeks. The law was struck down by lower courts, which led Mississippi to petition the Supreme Court for review. When the Court agreed to hear the case in May of 2021, the justices announced that the review would be limited to Question 1 of Mississippi’s petition, which was: “Whether all pre-viability prohibitions on elective abortion are unconstitutional.”
Viability and Roe?
The matter of “viability” has been a central doctrine of the Court’s abortion jurisprudence for nearly 50 years. The viability doctrine divides unborn children into two groups: those that are “viable,” that is, capable of surviving outside the womb, and those that are “pre-viable,” or not capable of surviving outside the womb. The Court has held that states may not prohibit abortions prior to viability. Once an unborn child is viable, states may enact some restrictions on abortion. But even for viable babies, the Court has said abortions must be allowed to protect a mother’s “health,” which is defined so broadly as to effectively permit abortion-on-demand through all nine months of pregnancy.
The viability doctrine is bizarre and intellectually dishonest on many different levels. Considered from a medical perspective, it’s a moving target. Around the time that Roe was decided, a preborn child was considered viable at 28 weeks gestation. With advances in medical technology, infants born prematurely at 22 weeks are now frequently saved. Yet clearly, Mississippi’s law prohibiting abortions after 15 weeks gestation protects some pre-viable babies, whether measured by 1973 or 2021 standards.
During oral arguments in Dobbs, the viability doctrine came under withering criticism from several justices. Chief Justice John Roberts queried, “… viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?” Justice Amy Coney Barrett took the argument in the opposite direction, asking “Why wouldn’t that be workable if you pick a line and say the end of the second trimester, 27 weeks … I don’t understand why 27 weeks is less workable than 24?” Justice Samuel Alito asked, “The fetus has an interest in having a life, and that doesn’t change, does it, from the point before viability to the point after viability?”
All these questions were useful in exposing how the viability dogma of Roe v. Wade is arbitrary and capricious. Whether or not the court decides to explicitly overturn Roe, it seems likely that there is a majority on the Court that wants to jettison the viability doctrine and toss it on the ash heap of history. But what will replace it? If viability is not the demarcation line between “personhood” and “non-personhood,” then what is?
Defend the vulnerable
It’s time to reject definitions of human personhood that serve only to give the strong and powerful more control over the weak and vulnerable. To use a term much in vogue these days, we need a more “inclusive” definition. Let me offer one: a human person is a living being of human origin which contains all the information necessary to guide his own development towards the actualization of his physical and transcendent nature.
From the moment of fertilization, a preborn child contains a complete, unique and unrepeatable genetic code, separate from his parents, including all the information he needs to develop as human beings do. This definition is profoundly different from the debunked “viability” dogma because it focuses on what the unborn child actually “is,” rather than on its stage of development or on its bodily autonomy.
Can a preborn child of only 10 weeks gestation survive outside her mother’s womb? Of course not. But ask yourself this question: could an infant 10 weeks after birth survive on her own if nobody gave her nourishment, clothed her, and changed her diapers? Could a 10-year-old child dropped into a remote wilderness and told to fend for himself survive for very long? Most able-bodied adults would fail this test. We don’t like to think of ourselves this way, but all of us are dependent on others for survival. How many of us grow all the food we eat, or make all our own clothing? Very few.
There is no logically rational demarcation point between the moment of fertilization and death where we can say: after this, a human person exists, and before this, no human person exists. That is because our dignity as human beings can never be measured by what stage of development we have achieved, but rather by the fact that we have an infinite transcendent nature.
If Roe v. Wade is overturned in the summer of 2022, the struggle over abortion will shift to the legislatures of 50 different states. We can’t afford to have state lawmakers merely repeat the lethal errors of Roe by writing into law definitions of personhood that condemn millions of innocent children to destruction. It’s time to start having a national conversation about what personhood means, because the answer to that question will determine if we really want our country to be a place “with liberty and justice for all.”