Wednesday, December 9, 2009

ADF Says It's Time to Revisit Roe v Wade.

The Aliance Defense Fund, those purveyors of Truth (with a capital T), today put out an abstract on Alliance Alert that asks the Supreme Court to finish what they started with Roe v. Wade: to decide on the 'personhood' of a fetus. A number of other "pro-life" sites have picked up the post.

Imagining what would happen if the Supreme Court did revisit the case gives me the shivers. Many of us write all the time that, for instance, the USCCB's muscling on health care reform is imposition of religious ideology on the rest of us, a violation of the separation of church and state. And we know that "pro-life" groups have one main objective, to make abortion (under the broadest definition) illegal. We witness their determination and power daily.

Maybe it's a naive question regarding an event unlikely to happen, but what would happen if the Supreme Court were asked to determine when life begins? What decision would guarantee women's rights without all this continual chipping away of access?

However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?

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