Roe v. Wade is such an important Supreme Court decision that even if it were reversed, it should be a good reading for anyone who is concerned about abortion because the issue is and will be with us for a long time. The case contains an excellent summary of the law throughout civilized societies, and the arguments of both sides of the issue.

Regardless of how the current Supreme Court will decide, completely reversing Roe v. Wade, reversing some parts of it, or in the unlikely scenario affirming it, abortion has given every thinking man and woman a headache and will continue to arouse strong emotion and heated arguments because in this environment of polarization, neither side is ready to compromise.

The Roe v. Wade decision is a tremendous effort to reach a sensible compromise of the two conflicting principles, a moral commandment and women’s rights.

 

For most women, it is unthinkable to abandon their children let alone aborting them. For most people, they would get sick to their stomach thinking that they had done something harmful to a child, any child. And it is not just loving life. We are created with a biological and psychological makeup that we feel mellow and soft in the presence of a child. And life is the emotional thrust of the anti-abortion movement. Their position is that abortion is immoral, equivalent to the termination of life, or more graphically the killing of a child. Their position is therefore straightforward, easy to understand and easy to identify with.

The argument of the abortion right advocates is less emotional but no less valid, because a prohibition of abortion is in fact the taking of a woman’s right, a fundamental right over her own body, and on close scrutiny, her liberty and happiness as well.

The copulation resulting in pregnancy needs two partners, a man and a woman. But pregnancy shines a light on the unfairness against the woman and the tremendous burden imposed on her from the time she is pregnant until, in many cases, the child reaches 18 years of age. She has to endure many hardships including physical discomfort and sicknesses, if her pregnancy and the fetus must be protected. Her male counterpart suffers no such hardship. The college boy just jauntily walks to his class and continues his education fully focused on achieving his dream. The male partner just goes to play golf after sex, nonchalantly whistling without a care in the world. She on the other hand, may have to quit school or her job and lose all hope of a bright future or promotion. The women deeply feel unfair. And they are mad. They are alone making the sacrifice and the people who decide that they make sacrifice are the ones sowing the seeds.

Anti-abortion means demanding that women abandon their rights to control their body and their life. But, if the women insist on such rights, argue the anti-abortionists, they infringe on the life of the fetus.

Faced with such fierce battle seemingly un-compromisable, the Supreme Court stepped in.

 

In Rose v. Wade, the Court did an amazing and thorough review of the history of laws prohibiting abortion, from antiquity to the early American law and found the following:

1. The Roman and Greek eras: their laws afforded little protection to the unborn.
2. Common Law: Common law scholars discussed in depth the question of when life began or the concept of “quickening” that is when the embryo first moves. Christian theology and the canon law, until the 19^th century, fixed it at 40 days for a male and 80 days for a female. Under common law, abortion performed before life begins- 16th to the 18th week of pregnancy – was not an indictable offense (not criminal) because the fetus was regarded as a part of the mother therefore its destruction was not homicide.
3. English Statutory Law: English statutes preserved the “quickening” threshold and introduced the exception that abortion of a quickening embryo was not a crime if it was necessary to preserve the life of the pregnant woman including a serious and permanent threat to the mother’s health. The Abortion Act of 1967 permits abortion, on the conditions that three physicians agree that:

(a) “the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,” or

(b) “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

The Act also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion “is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.”

4. American Law: Until mid-19th century American law followed the English common law. In the middle and late 19th century the quickening distinction disappeared from the statutory law of’ most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, most States banned abortion with the exception, with different wordings in each State, to save or preserve the life of the mother.

The Court noted that at common law and up to the middle of the 19th century in this country, “abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century.”

That means “the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion, or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common-law origin.”

Why so?  – The answer was the influence of the Hippocratic Oath, the oath taken by medical doctors, and the Christian teachings.

5. The Hippocratic Oath. The Oath states that “I will not give to a woman a pessary to produce abortion.” It was written by one man, Hippocrates, and according to Dr. Ludwig Edelstein, the German foremost authority on the Oath, only one school of philosophers, the Pythagoreans stuck to the Oath and opposed abortion of a fetus from inception. Most Greek thinkers, Dr. Eldelstein said, commended abortion at least before viability, or “quickening” (when the pregnant woman feels the movement of the fetus).

Then, the emerging Christian (Catholic) teachings agreed with the Pythagorean doctrine, which made the Oath popular and “became the nucleus of all medical ethics” and “was applauded as the embodiment of truth.”

In Dr. Edelstein’s opinion, it was a “manifesto and not the expression of an absolute standard of medical conduct.”

6. The Position of the American Medical Association. The AMA Committee on Criminal Abortion indicated in its report to the Association that it “deplored” abortion calling it a “general demoralization”. That position had great influence on the enactment of stringent criminal abortion legislation in the late 19th Century.

And the causes of “this general demoralization”? The report found three:

a. The first was a wide-spread popular ignorance, according to the Committee, that the fetus was not alive until after the period of quickening.

b. Second, the (medical) profession was frequently careless of fetal life.

c. The third reason was “the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being”

In 1871, the Association adopted a resolution, recommending legislation to outlaw abortion “without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child if that be possible…”. It called “the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females -aye, and men also, on this important question.”

But the Association took no other action until 1967, when it publicly opposed abortion with the exception of a threat to the health or life of the mother, or that the child “may be born with incapacitating physical deformity or mental deficiency,” or that a pregnancy “resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of patient…”

In 1970, a reference committee of the AMA noted the polarization of the medical profession, division of opinions among doctors as well as among AMA councils and committees, the changes in state laws and in judicial decisions that made abortion more freely available. The AMA’s House of Delegates then adopted resolutions emphasizing “the best interests of the patient,” “sound clinical judgment,” and “informed patient consent,” as opposed to “mere acquiescence to the patient’s demand.”

It further recommended that abortion be performed by a licensed physician in an accredited hospital only after consultation with two other physicians, and that no party to the procedure be required to violate personally held moral principles.

7. Then, the Court reviewed the position of the American Public Health Association and its five Standards for Abortion Services.
8. Finally, the Court discussed the position of the American Bar Association and its approval of the Uniform Abortion Act.

 

It was an exhausting examination of not just the history of the abortion laws in the Western civilization but also the emotional and religious aspects of the issue. In such polarized environment, especially in the U.S., like the two faces of a coin inseparably bound by fate but the two sides were unable to see eye to eye, the Court must let the nation know what it thought about the opposite arguments and how it would decide Roe v. Wade, a case by a pregnant woman against Texas claiming its criminal abortion laws were unconstitutional.

The anti-abortionists cited three reasons to justify prohibition of abortion:

a. To discourage illicit sexual conduct.

-The Court noted that this reason was not considered seriously by any other court and commentators.  Texas did not use this argument.

b. The medical procedure used in abortion was dangerous for the woman.

-Modern medical advances had changed the situation. But, the Court noted, the State had a legitimate interest in seeing to it that abortion would be safe for the woman especially when an abortion would be performed at a late stage of pregnancy.

c. The State’s interest or duty to protect prenatal life.

-It was argued that that a new human life was present from the moment of conception. So, the State was obligated to protect prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.

The pro-abortion advocates strongly disputed this contention that anti-abortion laws were to protect prenatal life, because there was no legislative history to support it. They pointed out that most state laws were designed solely to protect the woman. Furthermore, they argued, the adoption of the “quickening” distinction “tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception”.

 

In the midst of such fierce debate, Roe, the pregnant woman Plaintiff in this case, brought forth a remarkable argument in her lawsuit against Texas that its laws prohibiting abortion except when the mother’s health was at risk, were unconstitutional. In other words, she asserted that her right to abortion was protected by the Constitution.

The case landed in the Supreme Court, which agreed to take the case and must now decide if she was right. But the task of the Court was much more than answering with a simple yes or no. Because of the charged political climate and the high emotion involved in the issue of abortion, it was difficult for the Court to take side. And each side expected a total vindication.

As a matter of case laws, the Court recognized that a right of personal privacy encompassing the right of a woman to decide if she wanted an abortion, did exist under the Constitution, either in the Fourteenth Amendment or the Ninth Amendment. It was the law.

But here was the problem: The issue of abortion was such a heated issue that both sides were fierce, emotional, uncompromising, and willing to resort to violence.

The abortionists adamantly maintained that a woman’s right to decide whether or not to have an abortion could not be interfered by the State. The anti-abortionists represented by Texas were no less adamant in pulling the other way that the State had a compelling interest to protect the health of the mother and the prenatal life from and after conception, because, according to Texas, life began at conception and was present throughout pregnancy.

Each side wanted the whole enchilada.

The Court’s solution was to give a little to each side.

It rejected the abortionists’ argument, stating that the right of abortion decision was not unqualified and must be considered against important state interests in regulation.  “It is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.”

The Court also rejected Texas’ position because regulation limiting “fundamental rights” (including right to abortion decision) might be justified only by a “compelling state interest,” and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.

That ruling of “narrowly drawn” centered on the most sensitive and crucial issue of when the State’s interest became “compelling”, that is when a fetus became viable or a “person”.

After noting that the Constitution did not define a fetus as a “person”, the Court went through several theories on “viability” that varied widely from Aristotle’s theory of “mediate animation” (a male fetus obtained a soul – ensoulment – after 40 days, a female after 90 days) to the position of the Catholic Church, which is now its official position, that life began at conception, the Court made two determinations:

a. Viability was when a fetus could survive on its own outside a woman’s body after 28 weeks, or earlier 24 weeks with the help of medical technology.

b. The “compelling point” (based on “the now established medical facts”) was the end of the first trimester.

And the Court ruled as follows:

a. After the compelling point, “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health”.

b. Before this “compelling” point, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.”

c. “With respect to the State’s important and legitimate interest in potential life (life of a fetus), the ‘compelling’ point is at viability.” “If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”

One could not help empathizing with the Court’s incredibly difficult situation and reluctance to come down on one side or the other. The case was not purely legal but heavily involved or dominated, by emotion and political pressure. One side wanted to protect life, the other, especially women, fought hard for their right of privacy, the right to absolute control of their body. It was a tug of war, a deeply emotional war.

For an issue such as the women’s right to vote, it would be easy for the Court to come out and announce the winner or Congress to vote yes (it did vote yes to pass the 19th Amendment).  But Roe v. Wade was not that simple. So, the Court’s decision was obviously a compromise, a sensible political compromise.

Because both sides were equally unyielding in their conviction and fierce in their tactic, no compromise would be possible, and the fight was bound to move back and forth. The abortionists seemed to have won with Roe v. Wade. Sooner or later, the issue would come to the fore again. This time, in the year 2022, the anti-abortionists may have their winning chance with Dobbs v. Jackson Women’s Health Organization.

AMERICA VERSUS RUSSIA

(And Other Bullies)

On May 3, 2022, the New York Times columnist Thomas Friedman took issue with U.S. Defense Secretary Lloyd Austin for saying in public that “We want to see Russia weakened to the degree that it can’t do the kinds of things that it has done in invading Ukraine”. Mr. Friedman complains that that was talking too much. He also cautions the U.S. to be careful in allying with “a country you could not find on a map with 10 tries a year ago”.

Few people would disagree with Mr. Friedman that talking too much is not good. Speech is silver, silence is gold. So, talking less falls somewhere in between silver and gold, or even moves closer to gold if the talking is not done publicly.

But, in the case of Russia invading Ukraine, I dare venture a different opinion.

Russia’s attacking Ukraine was unthinkable to the world because there was no justification. It should now realize that it is bullying on a large scale pure and simple, and worse blackmail, when Mr. Putin introduced the element of nuclear weapons into his threat.

For a country 600,000 square miles BIGGER than Europe, 28 times the size of Ukraine to talk about gaining more land to preserve its security is pervert and fake, hiding in plain sight its prehistoric insatiable desire of gobbling more land. That desire was hidden after the unraveling of the Soviet Union, but not controlled or abated, until oil and gas money started pouring into its treasury. For a time, the world thought of Mr. Vladimir Putin as someone reasonable and enlightened. He turned out to have come from the same Russian cookie cutter having tried to talk the civilized language without being transformed, or he probably succumbed to the Russian collective greediness.

Self-conscious with the false pretext of national security, Russia stopped talking about it and invented a new and strange excuse: denazification. The president of Russia declared that the goal of invading Ukraine was “to protect the people that are subjected to abuse, genocide from the Kiev regime” and to “demilitarize and denazify Ukraine.” Then, it started accusing the U.S. of working with Ukrainian laboratories to develop biological weapons. Such lame excuses show clearly Russia’s true desire and intention: when it sees weakness, the bully pounces, right or wrong, and the world, be damned.

The U.S. must consider its own interest in acting in the international theater.  It is true as Mr. Friedman points out, that the U.S., in backing small countries, should not raise their expectations too high lest they get intoxicated. But even if they should not tie their fate to small countries, it is imperative that big powerful countries must strive toward the goal of standing on the side of small countries and defend them against big bullies. Fighting bullies of the world to let smaller people live their full life without being bullied or suffering should always be the same mission as fighting for Democracy.

It is always good advice that you don’t lose your strength while helping others. But if a bully is historically incorrigible, it must be weakened, and the club must be taken off its hand. It is not just a small country being attacked and the U.S. should not take a public stand. The Domino Theory is applicable here as well. If the U.S. and the West let Ukraine go today, tomorrow another small country and another after that, would be subsumed into Russia on some absurd pretext.

That is no longer a theory. With the invasion of Ukraine, it is a reality. Therefore, Russia needs to be weakened and the time is now to trim its claws.

And do it publicly. It is time to tell the bullies of the world that the U.S. is not retreating but re-strategizing, re-organizing, and leading the international community to fight them. The time is perfect to declare a variant of the Monroe Doctrine to warn the bullies to keep their hands in their pockets and never touch another country.

The Biden Administration’s message is also addressed to the rest of the world, countries such as India, which have for decades pursued a non-aligned policy to reap the benefits from both sides and at the same time conveniently sit on the sideline when the world needs to choose between right and wrong. Now that the U.S. and Western Europe have thrown down the gauntlet, they must come down from their illusionary high road and make their choice.

The Biden Administration’s message is also not just a declaration of a new strategy in a new world order but an assertion of leadership. By going public, the U.S. shows its willingness to commit itself to what it declares, to correct the zig zag approach of the past. In doing so, it will restore the prestige and trustworthiness of American policies and strategies, and the reliability of its leadership.