Abortion A Key Issue Under New Supreme Court

DANIEL NESBITT ’22
STAFF WRITER

Recently, the Alabama Supreme Court issued an interesting decision concerning fetal homicide. The case arose after an Alabama man was convicted of double-homicide for murdering his wife when she was 8 months pregnant, a decision in which the jury cited a 2006 law defining a child in utero as a “person.”

After being sentenced to death by the court, the murderer appealed to the state Supreme Court claiming children in utero do not deserve the same protections as children who are born. Rejecting his case, the court declared it a “logical fallacy” for the government to declare a man murdering a pregnant woman a double homicide but not consider the child in utero a person in the case of an abortion.

This conflicting issue creates a serious case of cognitive dissonance when considering abortion. Why is it that if a pregnant woman wants to keep her child, the child is considered a person, and the killing of that child results in a homicide, while at the same time, if the pregnant woman does not wish to keep her child, the child is suddenly rendered to be not a person? That the child’s “personhood” is determined solely by the attitude of the pregnant mother is a clear logical issue. Either the child in utero is a person or is not a person – the mother’s desire to keep the child is of no relevance to the question of “is the unborn child a person.”

Pro-life advocates believe this logical issue could be the framework to challenge and overturn Roe v. Wade. A justice of the Alabama Supreme Court decision even wrote in a concurring opinion, “I urge the Supreme Court of the United States to reconsider the Roe exception and to overrule this constitutional aberration. Return the power to the states to fully protect the most vulnerable among us.”

With the now-conservative majority on the Supreme Court, this case, should the Court grant certiorari, could be very critical in the ever-heated abortion debate. Despite that, Roe v. Wade has been affirmed twice, most recently in Planned Parenthood v. Casey, and it is rare for the Court to overturn such a long-standing case, taking place 45 years ago. While many claimed the appointment of Justice Kavanaugh is a threat to women’s right to an abortion, it is very unlikely that the court will take any substantive action addressing this issue.

Public opinion on the issue of abortion is very divided. In a May 2018 Gallup poll, 48% of Americans identified as “Pro-Choice,” however 48% also identified as “Pro-Life.” While this is a clear split, public opinion on the specific legality of abortion is quite different. While 18% said abortion should be “illegal in all circumstances,” 29% said it should be “legal under any circumstances.” These two responses paled in comparison to the 50% who said that abortion should be “legal only under certain circumstances.” While these figures tell one story, a different Gallup poll in July found that 64% of Americans do not want Roe v. Wade overturned.

Reviewing these data and considering the logical, moral, and ethical issues, I find myself struggling to arrive at a conclusion on whether abortion is moral. Furthermore, there are also legal and practical issues to consider. From a legal standpoint, Roe v. Wade has been criticized heavily by legal scholars. While one may believe that only conservative jurists would hold this position, even liberal Harvard Law professor Alan Dershowitz called the decision “a complete disaster,” as it entered the “political thicket” that the Supreme Court ought not enter. When examining abortion from a pragmatic perspective, there is a well-supported and documented theory known as the Donohue-Levitt Hypothesis which posits that legalized abortion reduces crime that is outlined in great detail in Steven Levitt and Stephen Dubner’s Freakonomics.

Bearing in mind all these factors and grappling with the issue as a whole, I am yet to arrive at anything resembling a conclusion. In fact, the more I research and ponder over this issue, the more uncertain I become. I certainly see both sides of the moral issue: I understand why some consider a child in utero a life and worthy of protection, but I also understand the pro-choice perspective. But when I consider the Donohue-Levitt hypothesis I question, even if abortion is immoral, perhaps it does have a net benefit. Nevertheless, more questions arise.

Some may argue that abortion is a dichotomy, a black-and-white issue, a binary question, but I believe it falls in the gray area. It is such a complex issue that I have, so far, found it impossible to solve.