The court and abortion - Supreme Court - column

THE SUBTLE PROBING done by the Justices of the Supreme Court on the question of abortion exposed the tactics of both sides-and the difficulties of both sides.

The Choice people are saying this: that if the Supreme Court abridges the right to abort, it is saying in effect that Americans do not have the right to use modern birthcontrol parapbernatia. The decision in Griswold v. Connecticut (1965) overturned laws against the sale of birth-control instruments of a rudimentary nature, namely condoms and diaphragms. The Choicers now say that to the extent that Griswold rules that a state may not interfere in the means by which couples govern the question of whether in sexual intercourse they will procreate a child, then that decision-in the modern world-must be understood as permitting not merely physical barriers to impregnation, but also abortifacients. That is, those paraphernalia which move in on an egg even after it is fertilized, bringing about its death. The "pill" does this, by common medical understanding; as does the IUD and, a fortiori, RU 486, the French drug which aborts the fertilized egg after the first menstrual period is missed. I.e., brings on the death of the egg after it is several weeks along in development.

So, Messrs. and Madame Justice: Do you really want to authorize the Missouri law, which would have the effect of depriving copulators of the right to choose their own form of birth control? That question appeared to give Justice Sandra O'Connor pause.

But then the Lifers moved in on tbe abstract point and said: Look, even the Roe decision makes distinctions. It distinguishes, for instance, between the first, the second, and the third trimesters. If it is possible to make a distinction along these lines, then it is possible to make a distinction along an earlier line. It is, accordingly, one thing to forbid an IUD or a pill; quite another thing to forbid an abortion having weighed, as the Missouri law does, tbe question of the fetus's viability. In other words, unless you acknowledge that a line of some sort can be drawn, then theoretically if you allow the use of an IUD you are committed to allowing the slaughter of a fetus one day before it would otherwise come to term.

This comes about as close as one can come to saying that there is a "fundamental right" to infanticide, unless one can find someone who can argue with philosophical plausibility that to kill a physiological package minus one day old on the calendar is substantially different-infinitely different-from killing what we know of as a one-day-old baby.

Now Justice Scalia was alert to the informal use of the argument based on "fundamental rights." How can you assert the "fundamental right" of the mother to destroy the fetus unless you first make a fundamental finding that the fetus is not a human being, and therefore entitled to the protections of the Fifth and Fourteenth Amendments? And if that question needs to be answered, who is to give the answer?

The Choicers replied that the answer cannot be given save by the individual in whose womb the fetus resides. Why? Because there are too many varied positions on the question, and although science can establish something called viability, it cannot establish whether a fetus is a "human being." But, one Justice asks, where does the Constitution imply that such a finding is outside the power of the state? If public policy needs to be made with reference to whether Object X is a human being or not a human being, how can it be made save by first making a public finding by which human beings are so designated?

What about an old man, comatose? Isn't it the responsibility of the state to declare that he is or is not-a human being?

What it comes down to is the distinction between common responsibilities and individual responsibilities. The Missouri Compromise, and to an extent the Kansas -Nebraska Bill, asserted that it was a corporate responsibility of the state to allow or not to allow slave-owning. Nobody, even in those relatively dark days, asserted the right of the individual to decide for himself whether to own a slavebecause all the world acknowledged the existence of the other party. The-slave. And the argument today hangs on just such a question: Is there another party?

The unborn, but viable, human being?

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