The question as to when human life begins has occupied the minds of physicians, philosophers, and jurists from Greece’s golden age of famous thinkers until now. The question is ancient, and for us once again new. In our time the debate over abortion rights has often been skewed by assertions that those who are against abortion on demand are imposing their religious beliefs on those favoring abortion rights. They couch the debate in terms of faith, doctrine, and religious belief. But what are the factual elements that belong in the debate quite apart from religious beliefs?
At the end of the first three weeks of pregnancy (just twenty-one days), medical science, not religious faith, tells us that the child in the womb has brain cells that are developing. Likewise the child is developing a stomach, lungs, and its own pair of eyes. The child’s heart first begins beating when it was only eighteen days old. Electric brain activity begins in the fourth week of pregnancy. Soon its arms and legs make their first appearances. These are medical facts, not articles of faith. Can we say it is not a human life in being?
A fetus in its mother’s womb has its own blood type, not its mother’s. It has its own body cells, its own DNA coding, it’s own heartbeat, and its own electric brain activity. Quite clearly it is not merely a part of its mothers protoplasm. It is not even a part of its mother’s body. The fetus is, however, connected to its mother’s body via an umbilical cord in order to receive nutrients. It is dependent on its mother; it is distinct from its mother but not yet separated from the shelter of its mother’s body. Clearly it is not a simply a part of its mother’s bodily cells.
In simplest terms, a fetus is a human life that, if nurtured and protected, will grow to be eighty or ninety years old. These considerations are matters of science, of fact, and of common sense, not faith. These truths are held not only by Catholics but also by people of other faiths, and people who do not claim to profess any particular religious faith. To claim that a fetus is not a human life is to turn a blind eye to reality.
Thirty-seven years ago in 1973 the United States Supreme Court decided Roe v. Wade in a seven to two decision, the majority opinion being written by Justice Harry Blackmun. The majority opinion did not decide the case on the basis of when human life begins. Rather, it was the rights of the mother that concerned the Court. The rights of the fetus were deemed insignificant, and, as such, the Justices passed over considerations dealing with the rights of fetal human life. In deciding the case, the fetus was considered a non-person, without legal status, and therefore without any constitutional status whatsoever. The Court was content with declaring that the State had an interest in protecting prenatal life. Writing the majority opinion Justice Blackmun declared:
“The third reason is the State’s interest — some phrase it in terms of duty — in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.” (Roe v. Wade, 410 U.S. 113, 1973; Section VII)
Note that the opinion regards the presence of human life as a matter of belief. Given the advancements that have been made in medical science, in particular the development of ultrasound examination, it is no longer a matter of belief; it is a matter of fact. Clearly it is not merely potential human life, it is actual human life.
In his opinion, Mr. Justice Blackmun briefly surveyed this history of thought with regard to the nature of the fetus, recalling tests such as “animation,” and “quickening,” and their legal ramifications. Given the present state of medical advancements those tests are, to say the least, antiquated.
The issue today is not whether a fetus is human life but rather whether the human life of a fetus is legally protected, constitutionally protected. Does it or does it not have legal standing and legal rights?
There are those who argue that Roe v. Wade gave women the right to have an unrestricted freedom to choose an abortion and that the mother and her doctor alone are the only parties to be involved in the decision to abort. They are wrong. The majority of Justices circumscribed the choice. Said the Court:
“(Some claim) that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” (Section VIII)
There are, as the Court recognized, legitimate interests vested in the fetus. In English Common Law and in U.S. law it is well and long established that a fetus in the womb may inherit property. Courts have recognized that a fetus can suffer damages and that it may recover in civil actions for injuries and other damages it has received. Additionally, in certain actions, judges have appointed guardians ad litem to protect the interests of yet unborn persons.
Curiously, many still assert that the fetus is not a human person, indeed not even human life. Such assertions defy both logic and common sense.
The Fourteenth Amendment to the Constitution of the United States declares: “… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. If people not citizens of the United States, aliens, immigrants, and foreigners are afforded civil rights in our country, why are persons in their mother’s wombs not afforded those same inalienable human rights recognized by our Constitution?
This unanswered question remains before us: Why does a fetus not have an inalienable right to life? The question is one of constitutional law, not of religious belief. As a question of law, when is human life to be afforded constitutional protection?