Next Monday and Tuesday the Senate Judiciary Committee will hear lawyers wrangle over the constitutional defensibility of a so-called “fetal heartbeat” bill. The version of the bill passed by the House is a ‘heartbeat’ bill. Contrary to what you probably believe, the Senate is not considering a ‘heartbeat’ bill. Here is what you need to know.
I will testify in favor of the Senate version of the bill. I did not support the House version of the bill. At the end of this commentary is a picture that shows what I’m talking about, but first, you need a little background history.
A Little History on Roe and Casey You May Not Know
In Roe in 1973, the U.S. Supreme Court said it didn’t know what a person was, so the unborn could not be declared by state governments to be persons in the eyes of the law relative to abortion and protected from abortion from conception. Consequently, the state had only an interest in protecting “potential life” and that kicked in only at some point prior to birth.
This point was called viability, but it did not mean simply an objective determination of the presence of a living human being as opposed to a non-viable or dead one. This would be what we would call a medical diagnosis concerning the existence of a condition, here, a pregnancy and the existence of a second human life.
However, Roe picked a more subjective understanding of viability, something like what we would call a medical prognosis. It meant a subjective determination of the unborn child’s likelihood of survival outside the womb, with or without medical technological assistance.
What was particularly galling to the pro-life crowd was that Roe said the state had no interest in protecting human life until then, and thus, could not regulate abortion at all during the first trimester.
Then in 1992 in Casey, five justices could not agree on the constitutional reason for enjoining enforcement of the abortion regulation there in question. That, by itself, should tell you something about the soundness of the reasons given for the judgment in Roe.
The conflict among the five was that, contrary to Roe, three of the justices—O’Connor, Kennedy, and Souter—thought the state had a “substantial interest in potential life throughout pregnancy.”
Here is what this looks like:
The Particular Problem with the House Bill
Unfortunately, the House bill accepts the reasoning of Roe and Casey that the state’s interest is only in potential life and not from the point at which that life is known to exist. It also accepts the reasoning in Roe and Casey that a subjective prognostic determination of viability should continue to be used.
The only real difference between Roe and Casey and the House bill is that the House bill says that the prognostic meaning of viability should be based on when a heartbeat is detected, not on when the unborn child can survive outside the womb. The argument is that once a heartbeat is detected, the unborn child, if not aborted, will survive to term and become a person in the eyes of the law.
Basing an abortion law on the detection of a heartbeat has good political optics and makes for a great bumper sticker—“Abortion Stops a Beating Heart”—but to simply say to the U.S. Supreme Court the prognostic meaning of viability we want you to use is better than yours is to ask the Court to substitute one subjective prognostic measure for another. And it seems rather arbitrary to say one is better than another except that one will save more lives than the other.
Of course, I support that end result, but in my view, agreeing to the legal logic of Roe and Casey makes it easy for the Court to apply Roe and Casey to the House bill. Reversal of Roe under those circumstances will look like the only thing that changed was the composition of the Court, something that makes Justice Roberts ill and will make Justice Kavanaugh nervous.
What’s Good About the Senate Bill
I like that the Senate bill confronts the Court with the legal foundations of Roe, which no legal scholar thinks was sound, and makes them justify it. It rejects the subjectivity of the Roe/Casey viability standard and says that abortion is prohibited once it is objectively determined that a life exists, which may be prior to the detection of a heartbeat. Human Growth Hormone levels may indicate the existence of a living human prior to then.
But what I really like is that the Senate bill is unique and different from the ‘heartbeat’ bills passed in other states in one very important regard. It puts forward a constitutional basis for the law that has never been before the Court, namely, the state’s power, implicated by the Ninth Amendment, to protect those “other rights” referred to in the amendment and not already “enumerated” in the Constitution.
What Are Those Other Rights and Where Do We Find Them?
Law professor Adam MacLeod, a friend of mine, will testify on Monday that those other rights can be found in the common law, those “laws” that derive their “force” among us not from legislative enactments backed by the power of the sword, but from such a long course of development over centuries that we know them to be true and real.
One of those was the right to life, and the common law recognized that the child in the mother’s womb was treated as a person for any number of purposes, just as we still do in every area of law but abortion.
The Ninth Amendment envisions that government, created to secure our rights, could continue to make secure our rights even if not enumerated in the Constitution as such.
Basing the proposed law on the Ninth Amendment creates a collision course between the Ninth Amendment and the 14th Amendment.
No court has ever had to render a judgment on this conflict; therefore, no opinion has ever been issued to tell us how that conflict should be resolved. So, any lawyer who tells you the opinions in Roe and Casey are controlling because the issues are the same is just wrong. The issues are not the same. So I will urge the Senate to adopt the amended Senate bill or one like it.
In my view, it’s time to make the Supreme Court decide what it has not been required to decide for 46 years. The science of prenatal life is now on our side. The law has always been on our side, and abortion’s view of the person has become increasingly isolated from and inconsistent with the rest of legal reality regarding prenatal life.
The truth we always knew was suppressed in Roe to reach a politically desired result. It’s time to bring the truth into the light.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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