Abortion litigation takes diverse paths in Blue and Red States

Arthur Goldberg
April 8, 2019
Reproduced with Permission

The contentious issue of abortion in the American court system was on display in three recent court cases that occurred in one conservative state and two liberal states. The conservative state of Alabama recognized the "personhood" of an unborn child by permitting the father of an aborted child to name the deceased fetus as a co-plaintiff in a lawsuit for "wrongful death."

The two liberal state decisions (Washington State and California), on the other hand, concerned a requirement imposed by state governments mandating institutions (including religious groups such as Churches) which provided group health insurance policies to its employees to also include coverage for abortion services.

Innovative precedent: personhood of the unborn child

Is an unborn child a person? The significance of this question is squarely set forth in the majority opinion of Roe v. Wade where Justice Blackmun warned that if the "suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment."

While there are several opinions as to when a fetus is recognized as a person, a recent trailblazing case from Alabama premised a holding upon Alabama's own 2018 state constitutional amendment that defined a person as "any human being from the moment of fertilization or the functional equivalent thereof." It allowed a lawsuit to proceed for the wrongful death of an unborn child. The Court permitted a man whose girlfriend ended her pregnancy after six weeks to sue for the wrongful death of his unborn child against both the manufacturer of the pill she used and against the abortion clinic that provided her with the pill. The court thus upheld an Alabama provision that recognized the legal rights of an aborted fetus and its "personhood".

But Alabama was not the first State to recognize that embryos and fetuses can be separate legal entities from the women who carry them. Twenty years earlier, another conservative state, South Carolina, in Whitner v. South Carolina recognized, in a non-abortion context, that prenatal injuries can be tortuously inflicted on a child in the womb. By recognizing the personhood of the child independent of the Mom, it affirmed the prosecution of a pregnant drug abusing mom under state child abuse laws for endangering her unborn child.

The Whitner holding is also consistent with a 2004 Federal law, the Unborn Victims of Violence Act (18 U.S.Code 1841) which effectively extends personhood status to a "child in utero at any stage of development" if the embryo is targeted, injured, or killed during the commission of a list of violent crimes. Because the statute established legal status for a fertilized egg in the context of a violent crime, thus providing personhood status to the embryo, liberal democrats offered an amendment - which was rejected - suggesting that the crime involved should be considered a second crime against the pregnant woman rather than a separate crime against the child as a "second victim."

Health insurance issue: religious groups resist participation in abortion

As may be expected in the divisive debate on abortion, the legislation and court decisions of so-called liberal states radically differ from recognizing a fetus as a person. They have little difficulty enacting programs to override deeply held pro-life religious beliefs. Thus, as part of their progressive agenda concerning expanding abortion, the State of Washington required any institution, including churches and other religious institutions opposed to abortion, to pay for abortion services for its employees. The plaintiffs argued that such a law adversely affects them, forcing them to participate in an activity that is utterly inconsistent with their basic religious beliefs.

In an effort to overturn this law, the Cedar Park Assembly of G-d Church (Kirkland Washington) filed a case against both the state's Insurance Commissioner and its governor, contending that the state cannot impose its alternative belief system on the church and nor require the Church's compliance through fines and imprisonment.

Washington State has been in the forefront of the liberal push for abortion. Nearly fifty years ago, three years prior to the Supreme Court's 1973 landmark decision of Roe v. Wade, Washington State voted to establish a limited right to seek an abortion. Under that law, the woman seeking the abortion had to show consent of her spouse or guardian, had to be a resident of the state for 90 days, and have the procedure within the first four months of pregnancy. In 1991, the state's voters piggybacked the Roe v. Wade decision by strengthening the right to abortion, declaring that a woman had a right to abort any time prior to fetal viability.

The hostility toward religion and activities of religious believers in the liberal State of Washington is part of a pattern. When the Trump administration passed a regulation allowing insurers to deny contraceptive coverage based upon religious or moral objections, the attorney general of the State sued to block such regulations from coming into force. The attorney general also challenged the Trump administration's rules forbidding clinics that received federal money from providing abortion referrals and required a complete physical separation of abortion services from family planning.

Not surprisingly, the progressive state of California had previously passed a similar requirement that churches provide abortion coverage for its employees and it too was challenged. In 2014, Skyline Wesleyan Church (in La Mesa, California) filed suit against the California Department of Managed Health Care in the United States District Court for the Southern District of California. The Church argued that paying for a plan of insurance that provides for abortions in circumstances not limited to endangering the mother's life violated its ability to conduct its affairs in a manner consistent with its own religious beliefs and thus was unconstitutional. In March, 2018, the Church's claims were dismissed without prejudice. It has appealed to the Ninth Circuit Court of Appeals.

While abortion advocates like the governments of Washington and California continue to argue that Roe vs. Wade is settled law and that an unfettered right to abortion must be guaranteed, pro-life advocates continue waging a relentless educational campaign, legislative initiatives, and court actions to restrict the unfettered right to abort. In contrast to the left wing abortion extremists --- who recently went so far as to proclaim that infanticide is OK --- the majority of Americans do not seek a policy of unrestricted abortion nor do they wish to violate religious beliefs on the sacredness of life. "For more than a decade, the annual Marist poll on abortion has found that the overwhelming majority of Americans --- usually three-quarters or more --- want abortion restricted to, at most, the first three months of pregnancy." In this respect, the majority of the American people are more in tune with the rest of the world than with those Americans who seek the destruction of human life as a non-negotiable principle and thus argue for the unrestricted ability to kill an unborn child. There are only a handful of other countries permitting killing an unborn child after 20 weeks gestation. They are North Korea, Vietnam, China, Canada, Singapore, and the Netherlands.

Viability and the question of when life begins

The United States adopted a "viability standard" in its infamous 1973 Roe v. Wade decision. In that case, the Supreme Court of the United States created the trimester viability standard even though this so-called trimester rule does not originate from anything found in the text of the constitution. The Supreme Court stated that human life does not begin before "viability", and defined viability as that stage of fetal development when the infant is "potentially able to live [i.e. survive] outside the mother's womb, albeit with artificial help." Thus, prior to such viability a child's life may be terminated.

Interestingly, according to James D. Robenalt , a well-respected attorney and author, Justice Harry Blackmun, in his initial draft opinion of Roe v. Wade observed that "the Court, at that moment in time, did not have the experience or knowledge to decide when life begins." Nevertheless after the case was reargued (and after Justices Powell and Rehnquist joined the court), the court developed the trimester viability rule.

It is in response to the Roe v. Wade opinion that the argument presently rages as to the meaning of the term "viability" of preterm infants. Non-medical dictionaries inform us that "viability" is defined as the "ability or capacity to live" or having "the ability to develop as a living being" or "having a reasonable chance of success". Such definitions are not necessarily limited to babies surviving outside the womb.

Thanks to advances in the care of preterm infants, the definition of "fetal viability" continues to evolve. While the general consensus appears to be that viability outside the womb now occurs at twenty-four weeks gestation, recent studies published in the New England Journal of Medicine and Pediatrics for outcomes of preterm infants indicates that some babies can survive outside the womb at 22 weeks. Some pro-life proponents go further, pointing to research on developing an artificial placenta that would make ten-week-old embryos viable outside the womb.

In a perceptive dissent in the 1983 case of City of Akron v. Akron Center for Reproductive health, Inc. Justice Sandra Day O'Connor argued that by creating the standard of viability, Roe was on a "collision course with itself" because modern science continues to evolve and improvements in technology would continually push the point of fetal viability closer to the beginning of the pregnancy.

Effect of fetal heartbeats

A movement has also begun to focus on the detection of a fetal heartbeat as "a more consistent and certain marker than viability". After all, if the existence of a heartbeat is an indication of life in end of life decisions, why wouldn't it be equally as applicable in the beginning of life decisions?

A 2017 Barna Group poll shows public support for the detection of a heartbeat as the critical factor in preventing that child from being aborted. Nearly 7 out of 10 Americans polled agreed that an unborn baby should be legally protected if a doctor is able to detect his or her heartbeat.

The emerging field of fetal medicine now permits doctors to diagnose fetal abnormalities and illnesses in the womb and to treat them in utero, increasing the child's chances of living and being born healthy. In some cases, fetal heartbeats can now be detected as early as four and a half weeks after conception using the Doppler device of echograms.

The fact that the fetus is a patient - treated separately from the mother - points to the reality that he or she is a separate living human being who should be valued as a person with legal standing.

Moral issues

There is of course a significant moral question involved in this issue. Thanks to the sexual revolution, and its ongoing dismantling of traditional family structures, "for the first time in recorded history, a predominantly G-dless society" has emerged. This culture of narcissism creates a prevailing passion to live for the moment and in the process devalues home and family life.

When it comes to abortion, the shared values of Judaism, Christianity, and Islam are unambiguous. They are premised upon the foundational principles of the Noahide Code which declare that prenatal life cannot be disposed of at will and that an unborn child does have personhood.

Religious believers hold to the truth that every unborn child has a soul and is beloved by G-d. Moreover, there is a clear biblical prohibition against killing an unborn child, based upon the injunction in Genesis 9:6 against shedding the blood of a person. However, even apart from biblical revelation, reason leads to the inescapable absolute truth that it is always wrong to intentionally kill an innocent human being. And, who can be more innocent that an unborn child? The opposition of our major religions to the abortion of an unborn life, except in very special circumstances, thus embodies one of the deepest norms of human society, that is, the protection of life itself.