July 7, 2021 // Perspective

Time for Roe to go

Richard Doerflinger

A More Human Society

I’m looking at a helpless but calm-looking baby, 16 weeks old, resting with eyes closed and one hand next to his or her face. The baby is surrounded by a thin membrane and floating next to the umbilical cord providing oxygen and nourishment.

This photo’s caption, comparing it to an image of a 12-week-old child, declares: “The body has filled out fantastically, quite recognizable now as a human baby.”

The picture, taken by award-winning Swedish photographer Lennart Nilsson, was part of a 1965 Life magazine feature titled “Drama of Life Before Birth.” That drama is reaching a new and critical stage.

The U.S. Supreme Court has agreed to decide whether the state of Mississippi is allowed — not required but allowed — to protect that 16-week-old baby from being killed. This case may set the stage for modification or reversal of the court’s 1973 Roe v. Wade decision, which declared a constitutional “right” to abortion and overturned abortion laws in all 50 states.

In Roe, the court divided pregnancy into “trimesters” of about three months each. In the first trimester, states could do almost nothing to regulate abortion; in the second, they could only act to protect the health of the pregnant woman, not her child.

And in the final months, when the child may be “viable” — that is, able to survive outside the womb if born — abortion must be allowed if the practitioner says it serves the woman’s “health,” defined expansively by the court to include emotional “well-being.”

That decision gave our country one of the most extreme abortion policies in the world, sparking a decadeslong controversy and strong criticism on the court itself. Some criticism relates to the court’s arbitrary “trimester” framework — partly because medical advances keep shifting the age when a child may survive outside the womb, from 28 weeks of gestational age down to 22 weeks now.

Nevertheless, the court reaffirmed Roe in Planned Parenthood v. Casey in 1992, declaring that states may not impose an “undue burden” on a woman’s ability to obtain an abortion before viability.

This brings us to the Mississippi law, which forbids abortions beginning at 16 weeks — except in the case of a medical emergency for the mother, or a severe fetal abnormality incompatible with continued survival for the child.

Does it create an “undue burden” on women’s ability to obtain an abortion in that state? Here are some facts to consider:

First, 96% of abortions in the U.S. are performed before the 16th week.

Second, Mississippi has only one abortion clinic now — and it only performs abortions up to the 16th week, presumably because at that time the procedure becomes more complicated and more dangerous for women. (The clinic’s physicians commute there from other states, as no Mississippi doctor wants to work there.)

Third, in 2007 the Supreme Court already upheld a ban on a particular abortion procedure even before viability. That “partial-birth abortion” method kills the child when he or she is mostly outside the womb. The court observed that “a fetus is a living organism while within the womb, whether or not it is viable outside the womb,” and said the ban expresses “respect for the dignity of human life.”

Regardless, some warn that by upholding the Mississippi law, banning abortions that are now legal but not available, the court would usher in a Dark Age of disregard for women’s freedom.

Weighed against this sweeping claim is that “quite recognizable” human baby, waiting to see if the rest of us are willing to set even modest limits to the taking of innocent human life.

Richard Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.