Sunday, January 22, 2006 was the 33rd anniversary of the handing down of the 1973 Supreme Court ruling in Roe vs. Wade. The decision struck down all state prohibitions on abortions, recognized a constitutional right to privacy and made abortion legal in the United States.

To mark the occasion, thousands of abortion opponents marched in protest in San Francisco, California, while abortion rights supporters along the march route held wire hangers and shouted “Bigots go home!”

The dueling protests reflected the growing tension over the makeup of the Supreme Court, which is about to change with the retirement of Justice Sandra Day O’Connor and the pending confirmation of Judge Samuel Alito.

Many abortion opponents have said they are encouraged by President Bush’s choice of Judge Alito who, during his confirmation hearings, refused to agree that Roe vs. Wade is “settled law.” Abortion rights activists, on the other hand, are upset by the expected confirmation of Judge Alito, who will replace Justice O’Connor, who was often the high court’s “swing” vote.

Both abortion opponents and supporters of abortion rights agree that the recent and upcoming changes to the ideological complexion of the Supreme Court are likely to have a significant effect upon the interpretation of Roe vs. Wade.

However, it should be noted that a Supreme Court decision overturning Roe vs. Wade would not outlaw abortion in the United States, but would rather send the issue back to the states. Several legal experts have said that the effects of a reversal of Roe vs. Wade would probably be minimal, depending upon the wording of such a hypothetical Supreme Court ruling.

In the unlikely event of the high court ruling that fetuses are persons, entitled to their own rights under the U.S. Constitution, a complete ban on abortion might be possible. At least a dozen states already have criminal laws banning abortion. Although those laws cannot be enforced while Roe vs. Wade is still binding, in theory they could take effect immediately upon a reversal that conferred the rights of personhood upon fetuses.

The more probable outcome, if the high court reversed Roe vs. Wade, would be a mixture of abortion laws that would vary from state to state. Some states would likely continue to guarantee full abortion rights, while other states might impose a complete ban. However, realistically speaking, most will probably find some sort of “middle ground” in which abortion would remain legal, but restricted by factors such as the patient’s age, pregnancy trimester, medical concerns and circumstances of conception.

In the Hands of the States

While the national debate regarding abortion is currently focused upon the Supreme Court, crucial legislative battles and other skirmishes in this 33 year-old controversy are being prepared and waged on the state level.

Lawmakers in Indiana, Ohio, Georgia and Tennessee are proposing broad abortion bans, which they hope will become laws that eventually win approval from a newly reconfigured Supreme Court. The state legislators wish to provoke legal challenges that will force the high court to reconsider — and possibly overturn — Roe vs. Wade.

Legislators elsewhere are seeking to “test the waters” by imposing a number of restrictions on abortions. Measures that were enacted in 2005, or will be under consideration in 2006, include counseling requirements (such as requiring women seeking abortions to first to view ultrasound images of their fetuses), waiting periods, parental notification laws, and stricter licensing regulations for abortion clinics.

A bill recently endorsed by a legislative committee in Arizona would require doctors to tell women seeking abortions that their fetuses could feel pain even if the women will be given medication for pain.

In Michigan, the anniversary of Roe vs. Wade was used to launch a new organization called Michigan Chooses Life, whose goals include getting a measure on the 2006 ballot that would change the state constitution to legally define a fetus as a person from the moment of conception. The American Civil Liberties Union of Michigan has said that even if the measure were passed, it would be challenged in court.

According to the abortion rights group NARAL Pro-Choice America, about 50 bills restricting abortions were passed in 2005, which is a 100% increase from 2004.

Although supporters of abortion rights are worried about the recent surge of restrictive legislation, they are also encouraged by other new state laws that ensure women’s’ access to emergency contraception and require health insurance companies to cover birth control.

The implementation of a strategy intended to slowly “chip away” at the rights recognized by Roe vs. Wade is as old as the ruling itself. However, abortion opponents, now emboldened by an ostensibly “conservative” president, Congress and Supreme Court, are becoming cautiously optimistic about the potential results of using the states as “laboratories” in which to test incremental restrictions on abortions.

Whose Rights?

The right to life is self-evident and modern science has effectively proven that a fetus is a living thing from conception. These truths cannot be disputed.

The right to self-determination is as inalienable as the right to life and much of the abortion controversy is about whether or not women should have the right to choose to terminate their pregnancies. However, it is also about the concept of personhood and what makes a living thing a person, entitled to rights under the U.S. Constitution.

Knowing what we know about the viability of fetuses, conferring the status of personhood upon fetuses might seem to be, at least in principle, the morally and ethically correct choice. But in actual practice, that recognition would be problematic, if not completely unworkable.

If a “person” lives inside of another person, there is no way to fairly and adequately determine whose rights prevail in the event of a conflict, such as when the internal “person’s” right to life is in conflict with the external person’s right to self-determination, which includes the right to choose whether or not to care for unwanted offspring.

Women have never been obliged to care for our children and we have always had the right to give them away when they are unquestionably persons. The right to be wanted, loved and raised by one’s own biological parent(s) cannot be secured or guaranteed and does not, therefore, exist.

If a fetus is a person entitled to rights under the U.S. Constitution, the circumstances under which its rights can be denied or restricted cannot even be contemplated because rights are inalienable, they are not at all like privileges, which can be granted or rescinded at whim.

Since there can be no arbitrary definitions of personhood based upon individual circumstance, if fetuses are persons entitled to the right to life, then all abortions are murder and there can be no exceptions in cases of rape or incest, threats to the mother’s health (even if they are potentially fatal), fetal defects (no matter how severe), or any other exceptional situation outside of those frequently maligned matters of “convenience” for which the vast majority of abortions are sought.

Unless fetuses are recognized as persons, the difference between infanticide and abortion is, without exception, about 3 inches. This cold, clinical notion makes most people feel very uncomfortable, which makes the imposition of limits or restrictions on abortions seem like reasonable compromises when they are actually nothing more than arbitrary resolutions of the usual ethical conundrums that present when we attempt to reconcile our value of the right to life with our value of the right to self-determination.