Abortion Arguments: A Misleading Question, and Reliance; Two Points On Which Some Clarification Might Be Appropriate
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WASHINGTON, D.C. (December 1, 2021) - Today's arguments before the Supreme Court regarding abortion were complicated, so it might be appropriate to clarify two points which seem to be receiving little if any attention from media trying to help the public understand the proceedings, suggests public interest law professor John Banzhaf, who highlights two.
First, Justice Thomas asked whether a state would have an interest in preventing pregnant women from ingesting cocaine pre-viability.
This might suggest that Roe and its progeny, by establishing a woman's right to destroy her fetus before it becomes viable, thereby also creates a legal right to harm it by ingesting illegal drugs - which might thus preclude prosecuting her for "criminal child neglect" as Justice Thomas explained.
But since the basis in Roe for establishing a right in women to abort a fetus early in her pregnancy was based in large part upon the risks to her life and health of being forced to give birth, the Roe line of cases should have no impact on such criminal prosecutions because ingesting cocaine - unlike having an abortion - does not eliminate the risks of birth.
In other words, says Banzhaf, Roe established a right to abort a fetus so that no baby will ever be born, but certainly not a legal right in a woman to poison it so as to create a serious risk of having a cocaine baby when she delivers.
Moreover, even to the extent that part of the Roe rationale was based on the need not to impose on women the financial and life style burdens, or changes in manner of living, created by the birth of a normal healthy baby, poisoning a fetus in the womb with illegal drugs does not eliminate that burden.
Indeed, by making it more likely that a baby will be born with a serious addiction, those financial and life style burdens are likely to be substantially increased, and probably involve more expense for taxpayers - both concerns giving the state an interest in protecting against it by criminalizing the use of illegal drugs.
The Issue Of Reliance
Second, another important point which might cause some concern or confusion is the issue of reliance.
Virtually all the justices, as well as a legal experts on all sides of the abortion issue, agree that a strong argument against reversing any prior Supreme Court decision is reliance - the extent to which individuals, private institutions, and governmental bodies may have made, or be making, decisions relying upon the precedent.
But here most experts, and most responsible media, are predicting that, based upon the arguments and other factors, it is very likely that the abortion law in question will not be struck down, and that a decision will not be rendered until June.
Thus women and others who are likely to be affected are being given some six months notice that the Mississippi law is likely to be permitted to stand, and that the protections afforded by Roe and its progeny will be narrowed if not eliminated.
Since it normally takes nine months between the act of conception and birth, only a small number of women who might be counting on the ready availability of an abortion if they become pregnant can complain that their reliance upon the Roe precedent was undercut without any warning, notes Banzhaf, who takes no position nor offers no prediction regarding the future of abortions.