Supreme Court Abdicates Responsibility in Late-Term Abortion Case

[Today’s guest post by Roger McCormack is part of our paid blogging program.]

The tragedy that is late-term abortion recently received the approbation of the U.S. Supreme Court. A case pertaining to Arizona legislation banning abortion at 20 weeks, which the Ninth Circuit subsequently struck down as unconstitutional in Isaacson v. Horne, illustrates the increasingly empirical claims refuting orthodox pro-choice assumptions.

New insights in embryology exhaustively document the ability of a fetus to feel pain as early as 16 weeks, and offer evidence that the effects of late-term abortion on the health of the mother are adverse. The District Court that first heard the case ruled that a ban at 20 weeks was permissible due to “substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least 20 weeks gestational age,” as well as finding that “the instance of complications (to the health of the pregnant woman) is highest after 20 weeks of gestation.” Arizona’s legislation carved out exceptions for significant health risks or threat to the life of the mother. But the Ninth Circuit reversed the District Court, and only the intervention of the Supreme Court could restore the legislation.

The Supreme Court, in refusing to enter the fray, implicitly surrendered to prevailing abortion rights principles, irrespective of scientific claims. That late-term abortion entails sadism, the willful knowledge that a fetus undergoing the procedure will feel significant pain, further condemns the Court’s negligence. A disturbing corollary is the notion that Roe v. Wade is unassailable; an apogee of legal reasoning that belies any attempts of reform.

The inability of abortion rights advocates to grapple with the knowledge of what late-term abortion actually does further suggests a logical, moral, and philosophic weakness.
For example, Amy Davidson of the New Yorker wrote:

Some states have tried to justify early bans by pointing to a state interest in preventing fetal pain; the science is much disputed there, but this is a field that anti-choice activists and legislators are actively pursuing. (The appeals judge in the Arizona case noted that, were it an issue, it could be addressed with an anesthetic, but that is a logical answer to an emotional appeal.)

The callous admission that a fetus can merely be treated with an ‘anesthetic’ offers a incisive look into pro-choice logic. Failing to contend with fetuses that have suffered pain, or are currently suffering pain, Davidson places the burden of proof on pro-life advocates. Why should the onus be on those who seek to prevent an act of violence? Does not the inverse require an incontrovertible burden of proof? While the scientific evidence is far from nebulous, the slightest chance of pain being inflicted should require a Supreme Court hearing. The inexorable logic of this could easily lead to arguments advocating for the use of aesthetic before killing a newborn baby, but that would be to betray emotion, forbidden in the realms of cold “logic”. 

Furthermore, the stipulation of viability as the sole threshold for impermissible abortion, in Roe v. Wade, did not stop the court from deciding in Gonzales v. Carhart to uphold a ban on partial-birth abortion. Justice Anthony Kennedy wrote, “The court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The court should have decided to take up this mantle again, and refuse to let pro-choice obscurantism win the day.