Disclaimer: I am neither an expert nor a legal scholar, so in this post I will lean heavily on those who are experts in those fields and do my best to represent them accurately.

Writing for the majority of the court in the landmark Roe v Wade, Supreme Court Justice Henry Blackbun acknowledged the sensitivity and the complexity of issue at hand:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.[1]

Later, addressing specifically the question of when life begins and the judiciary’s role in the matter, Blackbun says

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.[2]

As I hope to have demonstrated thus far, Blackbun’s assessment of the landscape was accurate then and remains accurate today.

Bright Lines, Balancing Tests, and Abortion
In matters of law, legal experts often refer to something called the “bright-line rule” or the “bright-line test.” This is defined as “an objective rule that resolves a legal issue in a straightforward, predictable manner. A bright-line rule is easy to administer and produces certain, though, arguably, not always equitable results.”[3] Much of the abortion debate has been centered on whether or not there is a “bright line” determining when human life and personhood begins. The “pro-life” side asserts that such a line does exist and that it exists at the “moment of conception.” As we’ve seen, however, and as Justice Blackbun observes, the utter lack of consensus seems to indicate that such a bright line does not actually exist. Without such a line, it becomes difficult to make an “objective” rule.

The “bright-line test” is often contrasted with the “balancing test,” which is defined as “a subjective test with which a court weighs competing interests to decide which interest prevails.”[4] In the absence of a clear bright line regarding when life begins, the courts have sought to strike a balance between a woman’s health, a woman’s privacy, and the potential life of the unborn, among other things. For most of human history, up to and including the present, there has never been either an absolute right either to fetal life nor to privacy and bodily autonomy. Even those who tend toward one extreme or the other generally recognize there are at least theoretical exceptions to their rule. For example, most “pro-lifers” generally acknowledge that an abortion might be the lesser of two evils when the mother’s life is legitimately in danger and most “pro-choicers” generally disapprove of “elective, non-therapeutic late-term abortions.”

Contradictory Codes
The absence of a “bright line” in regard to the question of when life begins has led to confusion and contradictions in federal and state legal codes. For example, in both federal law as well as many state laws, an assault on a pregnant woman that leads to the loss of an unborn child is classified as an offense up to and often including homicide. Most of these laws, however, make explicit exceptions for abortions. These laws themselves are the subject of a great deal of debate and the arguments both for and against them varies. Further complicating the matter is the fact that at least some of these fetal protection laws seem to have been crafted intentionally to be a backdoor way of criminalizing abortion.

On the other end of the spectrum, there seem to be some inconsistencies and oversights among those who argue that personhood begins at conception as well. For example, it may seem trivial, but one would expect that if the law recognized personhood from conception then prospective parents would be able to obtain a social security number for their unborn child as soon as the pregnancy was discovered. Similarly, we would expect women who are pregnant at the end of one year to be able to claim their unborn child on their taxes and receive the child tax credit, even though the child had not yet been born. Of course, as anyone who has children knows, social security numbers and, therefore, tax credits, are only made available to children with birth certificates. This seems to indicate that, at least for the purposes of identity and taxation, our legal system believes personhood begins not at conception, but at birth. I’ve never seen pro-life advocates make a case for social security numbers and tax credits for unborn children. Along those same lines, we often use our birthday, not conception day, as the starting point of our existence for legal documents and we speak of birthrights, not conception rights.

My point here is not to make a case for or against any of these various laws, I’m simply trying to highlight why the questions of life and personhood are such complex and sometimes contradictory issues in the legal system. In the next couple of installments, I’m going to narrow the focus a bit and highlight the complexity that comes with criminalizing abortion.

[1] Henry Blackbun, U.S. Reports: Roe v. Wade, 410 U.S. 113 (1973).

[2] Blackbun, Roe v. Wade.

[3] Cornell Law School, Legal Information Institute, “Bright-Line Rule,” https://www.law.cornell.edu/wex/bright-line_rule.

[4] Cornell Law School, Legal Information Institute, “Balancing Test,” https://www.law.cornell.edu/wex/Balancing_test.