Supreme Court Justice Brett Kavanaugh suggested the court should take a neutral position on the divisive question of abortion during oral arguments in an abortion case Dec. 1.
In fact, Roe v. Wade does exactly that, said an expert on reproductive rights at Washington University in St. Louis.
“Roe v. Wade (the landmark 1973 decision that states cannot ban abortion before fetal viability) recognized individual liberty interests, state interests in maternal health and fetal life, and it balanced these competing interests,” said Susan Appleton, the Lemma Barkeloo & Phoebe Couzins Professor of Law.
“It recognized the wide range of views about when life begins, declining to elevate one over others. Given the burdens — physical, familial and societal — that the pregnant woman faces, the court decided to let her make the call when life begins and to choose to act accordingly.
“Roe v. Wade reflects precisely the neutrality that Justice Kavanaugh seeks now.”
The Supreme Court heard arguments this week in the legal battle involving a Mississippi law that prohibits abortions after 15 weeks of pregnancy, which directly conflicts with Roe v. Wade.
“Notwithstanding several assertions during oral arguments, viability is not an arbitrary limit for constitutionally protected abortion decisions,” Appleton said. “Defined as the point when the fetus can survive outside the womb, viability marks the time when law might properly consider the fetus separately from its reliance on another person’s body. Before viability, the embryo or fetus is necessarily part of the pregnant woman.
“With viability, however, law can coherently say that the pregnant woman has ceded some autonomy because now the fetus is no longer wholly dependent on her body. That distinguishes viability from any specific time limit, whether 15 weeks or six. Those truly are arbitrary.”