Tuesday, June 22, 2010

The Baby's Development

It is damning, I think, of Roe v. Wade--and all the opinions that follow it--that there is no in depth discussion anywhere about the baby in the womb and her development. No discussion of her heartbeat, her brain, her lungs, her movement. We don't even have a discussion of how big she is.

People who are concerned about infanticide would be discussing this, thinking about it. I mean, a Supreme Court Justice who was worried about infanticide obviously would not allow abortions that killed a baby. And such a Justice would hesitate to say it was "right" to do an abortion if there was a possibility it might kill a baby. How is not thinking about it supposed to reassure the rest of us?

In order to determine if an abortion is a homicide, the Supreme Court should be asking if the baby is alive, how the state defines death, and so on. An opinion that did this, of course, would pay particular attention to the baby's development. Such an opinion would give us a discussion of biological factors. Does the baby have a heartbeat? Is the baby moving? Is this movement voluntary, or reflex? Is there brain activity? Is there an EEG? Are his lungs working, or capable of working? These are criteria doctors use to determine if people are alive or not alive, in accordance with State law.

An opinion worried about infanticide would consider facts like these:

Week 9 (7 weeks after conception): Fetus starts voluntary movement. This movement may be classified as either reflexive or spontaneous, and may be triggered by either the spine or the brain. Fetus is 1 inch long. The heart is beating. All major structures, including hands, feet, head, brain, and other organs are present, and will continue to grow, develop, and become more functional.

Week 10-14 (8-12 weeks after conception): Movements include complex motor patterns, together with hiccups, stretches and yawns. Face is well formed and the appearance of the genitals in males and females becomes more apparent. At this time the fetus doubles in size, from two and a half to five inches in length. The first measurable signs of an EEG movement occur in week 12.

And so on. It is said that this is a "slippery slope." So, what, you're just going to ignore all this information? You're going to just pick a random point on the murder end of the spectrum, and then be shocked when people flip out and call you a baby-killer?

Suppose you are of a mind to find a right to abort pregnancies. I could see a Court wanting to do this, particularly in rape cases. But what is inexplicable to me is this idea of overturning an abortion statute and issuing new rules while ignoring the State's death statutes and the issue of infanticide. I would think, just as a matter of pragmatism, you would want to consider this issue carefully, in hopes of avoiding a massive fuck-up that brings all this ire and anger at your institution.

And yet in Roe there is no discussion of the law in the State about when people die. No discussion of infanticide, and no worry about infanticide. The Court glibly and arbitrarily picks a point late in the pregnancy. "With respect to the interest in potential life, the compelling point is at viability." Blackmun gives no hint why this "compels" him or why it should compel us. Viability? What's that?

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