It’s been about a year and a half since I posted on this site. In the interim, we’ve had the attacks in Israel, an assassination attempt on a former president, a presidential candidate step away.
And that’s only since October.
We’ve only had one political convention and the Democratic National Committee is scheduled to have theirs until August 19.
It’s going to be a long month.
More later…
by LAURA ECHEVARRIA
*This first appeared on November 30th on the blog of Human Life Review
This week the U.S. Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization. The case concerns Mississippi’s 2018 “Gestational Age Act,” which prohibits abortion after 15-weeks of gestation (13-weeks after fertilization). The question before the Court, however, concerns whether the state has the right to protect unborn babies at any stage prior to viability. Legal commentators, pundits, and pro-abortion groups all have opinions regarding what may happen—or what they hope may happen—in this case, but what is clear is that the abortion issue is far from settled.
At heart, the arguments for and against abortion are about rights: the “right” to take the life of an unborn child versus that child’s right to live and be welcomed at birth as a member of the human family.
The Court’s 1973 decisions in Roe v. Wade and Doe v. Bolton revolved around a “right to privacy,” which the justices located in “penumbras” of the Constitution. In 1992, the Court reworked its abortion-law framework in Planned Parenthood v. Casey, establishing an “undue burden” test that prevented legislation passed by a state from seriously impinging on a woman’s ability to obtain an abortion. But the Court did not clearly define what would create an “undue burden, and as a result, abortion laws continue to be disputed in the courts and legislatures.
Over the years, the justices have strongly adhered to stare decisis, that is, Supreme Court precedent, when deciding abortion cases. In 2020, in June Medical Services, LLC v. Russo, the Court nullified Louisiana’s “Unsafe Abortion Protection Act,” which had required doctors to have admitting privileges at a hospital within 30 miles of the clinic where they performed abortions. While comparisons were made to the Court’s 2016 decision in Whole Women’s Health v. Hellerstedt, which struck down a similar Texas law, there was a significant difference between the two laws: Louisiana’s was not unique to abortionists. The Louisiana state legislature had sought only to extend an already existing provision—one that was required of all other physicians in outpatient surgery settings—to abortionists. However, pro-abortion groups argued that implementation of the law would have resulted in the closing of all but one abortion clinic in the state, and the Court determined that this would create an “undue burden.”
While siding with the majority in June Medical, Chief Justice Roberts wrote a separate opinion in which he expounded on stare decisis:
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike… Stare decisis (“to stand by things decided”) is the legal term for fidelity to precedent … This principle is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them.
But such adherence to stare decisis in the case now before the Court would ignore how much we have learned about the unborn child since Roe and Doe were decided, and how far prenatal medicine has advanced.
In 1973, perinatology and neonatology did not exist. In fact, the subspeciality of neonatology did not receive certification until 1975, and the Society of Perinatal Obstetricians for perinatologists (now called the Society for Maternal-Fetal Medicine) was not formed until 1977. Ultrasounds existed as early as the 1950s but were not yet in widespread use in maternal-fetal medicine. Today, ultrasound technology permits us to see the life of an unborn child in three dimensions. Doctors can now treat her as a separate patient from her mother, performing fetal surgery and administering other medical care.
By contrast, our laws concerning the humanity of the unborn remain fixed in the past. For example, in 1973, viability was set at 24-26 weeks of gestation. Today, due to technological advancement, premature babies born as early as 21-22 weeks are surviving. Viability is an unworkable standard in law because it is more of a reflection of advances made in medicine than it is of the development of the child herself. As Justice Sandra Day O’Connor noted in her 1983 dissent in Akron v. Akron Center for Reproductive Health:
The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.
The last 50 years have seen surging scientific innovation—nanotechnology, quantum computers, smartphones, GPS, non-invasive robotic surgery, advanced spaceflight systems, et al.—but we are still in the dark ages when it comes to how our law treats the most vulnerable among us. During that same time, over 63 million lives have been lost to abortion. It’s time—long past time—for the Supreme Court to give the unborn their due.
This past March, while the world was still in COVID-crisis mode, my husband and I were in a crisis of our own. We had applied for guardianship of our son Peter, who has mild to moderate autism and had just turned 18. We felt an urgency to secure it as quickly as possible, because if he became sick with COVID and were hospitalized without guardianship, we could find our ability to direct his care severely limited.
But when we received the documents from our attorney, stipulating in black and white that my husband and I would be, technically, adversaries of our son in the guardianship court case, I felt a flash of that soul-deep anguish I had felt at Peter’s diagnosis. His limitations, both personal and social, were spelled out in the paperwork. I cried.
I was taken back to December 2005 and the moment when the developmental pediatrician first spoke the words, “Your son has autism.” At first, I couldn’t breathe. It was probably only a few seconds, but it felt much longer. And then, suddenly, I was sucking in great gulps of air as I tried to control my distress and tell the doctor the story of our son. I began by recalling that while I was pregnant with Peter in late 2002, a marker for Down syndrome had showed up in a routine ultrasound.
I was sent to a perinatologist for follow-up and a more thorough screening, but I got in an argument with him because he insisted that I have an amniocentesis. When I said I didn’t want one, the doctor—who had seen me for all of five minutes—persisted, arguing that “some couples like to terminate the pregnancy.” His words made me angry. I told him that we would be keeping our son no matter what and that I was refusing to have an amniocentesis. As he was leaving the room, his parting words were, “Well, you have a 25-percent chance of having a child with Down syndrome.”
He wasn’t telling me anything I didn’t already know—I had a 25-percent chance of having a child with Down syndrome based on my age alone. He said it to show that science was on his side and to scare me into agreeing to the amnio, which just made me angrier. But it also made me sympathetic toward women who feel compelled to consent to extensive prenatal testing only to be pressured into having an abortion if their unborn child is diagnosed with a disability.
Instead of getting the amnio, I saw a different specialist who ordered additional ultrasounds to check for any other markers or health issues that could require Peter to have surgery after birth. The doctor was astonished at Peter’s size—he weighed four pounds while most babies at 26 weeks weigh a little less than two pounds. She eventually concluded that the marker for Down syndrome was probably related to how big Peter was at such an early stage of pregnancy. After two months, we were told that he did not have Down syndrome.
Now I had just been told that he had autism. As I recounted the story about the Down’s marker to Peter’s pediatrician, I wanted her to know—and I guess I needed to say the words out loud—that we would fight for our son. We had before and we would again.
All children are miracles, but my husband and I were told we would have trouble having them—if we were able to conceive at all. Our daughter was born on our fifth wedding anniversary; two years later I suffered a miscarriage. Becoming pregnant with Peter two years after that was no less of a miracle than the birth of our daughter. After concluding that we would be blessed with only two children, our youngest was a surprise, arriving seventeen months after his older brother.
I have never regretted for a moment having children with special needs (our younger son was diagnosed with autism about six months after Peter) but I know the world can be cruel—espousing acceptance of people with disabilities on the one hand while on the other pushing to “eliminate” disabilities by pressing abortion on the expectant parents of children who don’t pass the sonogram or genetic test.
Not surprisingly, in a December 2020 article in The Atlantic, the chief scientific officer of Genomic Prediction, a New Jersey company that screens embryos for IVF treatments, said that the one test customers continually ask about is for autism. Such a test doesn’t exist—not yet. Scientists have identified several genes that can indicate a probability of an autism diagnosis but so far, no test can reliably pinpoint it in utero.
I feel a special affinity with people who learn an unborn child has Down syndrome. These children are often targeted for abortion, with doomsayers like the perinatologist I saw pointing to all the negatives that await prospective parents. Children with autism likewise will be targeted as soon as the science makes it possible.
For all the problems it can solve and all the wonders it can create, science has a dark side, manifest in the quest to identify—and discard—those who are not “normal.” As science advances, our society retreats from extending true, life-long (from conception through natural death) compassion to those with disabilities.
*This post first appeared on Human Life Review’s blog in August 2021