(VIDEO) The Science on “Fetal Personhood” Hasn’t Changed Since Roe


This article is published as part of a series by RH Reality Check and our colleagues in observance of the 37th anniversary of the Supreme Court decision on Roe v. Wade.

According to PersonhoodUSA, one of the reasons Roe v. Wade was wrongly decided is that the Court did not have available to it the “well-known facts of fetal development.”

To explain, PersonhoodUSA is an organization that seeks to establish new laws declaring full constitutional rights for the “unborn” from the moment of fertilization. Roe v. Wade is the name of the 1973 U.S. Supreme Court decision that recognized a woman’s fundamental right to choose abortion. According to PersonhoodUSA, “The science of fetology in 1973 was not able to prove, as it can now, that a fully human and unique individual exists at the moment of fertilization. . ..”

Today, on the thirty-seventh anniversary of Roe v. Wade, we thought it would be valuable to fact check that claim. What we found is that extremely similar claims about new science were, in fact, made to the Supreme Court when the case was being argued in 1971, 1972, and 1973. For example, in the written arguments to the court (called briefs) defending Texas’ anti-abortion law, lawyers for the State of Texas described in extraordinary detail “how clearly and conclusively modern science – embryology, fetology, genetics, perinatology, all of biology – establishes the humanity of the unborn child.” More than twenty-four pages of the State’s brief defending the Texas statute outlawing abortion were devoted to the argument that “medical science” established the need for such a law. An amicus (friend of the court) brief, filed in support of the Texas law by “certain physicians, professors and fellows of the American College of Obstetrics and Gynecology,” made the same argument.

Just to be absolutely sure the U.S. Supreme Court Justices didn’t miss this point, the main brief and the amicus brief both included ten pages of photographs of actual fetal development. And, when it came time for the 1972 oral argument in the case, Texas Assistant Attorney General Robert C. Flowers didn’t forget to mention that “medical research” supported the law banning abortion. So the claim that Roe v. Wade was decided without the benefit of medical research and scientific knowledge concerning fetal development is simply not true.

Of course there have been important scientific developments in the last thirty-seven years. But the fact is, that “new” science can’t provide the basis for overturning Roe v. Wade. This is because no science changes what attorney Janet Gallagher calls the geography of pregnancy. Because pregnancy takes place within a woman’s body, there is no way to assign to fetuses separate legal rights without depriving pregnant women of their rights. That is why the Supreme Court refused to accept the argument that fetuses are separate legal persons. To have done otherwise would have created unprecedented law depriving women, upon becoming pregnant, of their fundamental rights – to bodily integrity, informed medical decision-making, due process, liberty, and life itself.

Thus, while Roe left states free to value and advance potential life in a variety of ways, the decision prohibited states from using fetal personhood as a basis for banning all abortions. This decision also prevented states from, for example, forcing a pregnant woman to undergo cesarean surgery, arresting her to stop her from having a home birth, or detaining her to make sure she follows her doctor’s advice to get bed rest.

Roe v. Wade stands for much more than the right to terminate a pregnancy. As the Supreme Court explained in later cases, Roe has been “sensibly relied upon to counter” attempts to interfere with a woman’s decision to become pregnant or to carry her pregnancy to term. Nearly one million women each year terminate their pregnancies, close to another million experience miscarriages and stillbirths, and more than four million women continue their pregnancies to term. Whatever PersonhoodUSA may claim about advances in the “science of fetology,” it can’t change the fact that each and every one of these women benefits from the Supreme Court’s decision in Roe v. Wade.

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  • progo35

    Don’t buy it. You (RH Reality Check) yourself have posted various articles bemoaning the impact of new sonogram technology on the Millenial generation and it’s understanding of abortion.

    "Well behaved women seldom make history."-Laurel Thatcher Ulrich

  • crowepps

    What the average person on the street ‘understands’ doesn’t have anything to do with a change in the actual science of pregnancy.  As is obvious among the commentors here, who because of their interest in this issue should be better informed than the average person, many people don’t have up to date scientific knowledge on how the birth control pill works, how Plan B works, how soon after sex fertilization happens, the odds of any particular fertilized egg surviving, the biological and metabolic cost pregnancy imposes on the woman, regularly recurring pregnancy complications and the necessary treatment for them, and lots of other scientifically well-defined aspects of this issue.

     

    Being able to ‘see’ on an ultrasound or sonogram and being converted by advocates to a sentimentalist explanation of what it ‘means’ is not the same thing as "new science".  In addition, the original Supreme Court case included days and days of scientific testimony about the biological process of pregnancy and fetal viability, most of which hasn’t changed a bit in the ensuing years, as well as a lot of moral/religious argument from all sides.  The Supreme Court had a great deal of scientific information before it the Decision in Roe v Wade itself makes that very clear.

  • harry834

    Did you read this whole article? If so, can you tell me which parts of this article don’t sound right to you?

    Perhaps you are also thinking of others articles. You can bring them in for your response.

  • derekp

    Kudos to showing that the SCOTUS has been aware of fetal development for a long time.

     

    However, just because granting fetuses rights deprives women of some legal rights to do things (like have abortions) does not mean fetuses are not persons. Simply put, the argument that some humans aren’t persons because recognizing them as persons deprives other people of rights is an invalid argument. It would be like saying African Americans aren’t persons because saying they are persons deprives store owners their right to not serve them in their establishments (an argument used by segregationists). It will do no good to object that African Americans are persons because they are born. The right to have an abortion is the very right that is in question. So saying fetuses aren’t persons because their personhood would deprive women the right to abort is simply a useless exercise in circular reasoning because the right to abort depends on fetuses not being persons in the first place!


    Now, the argument that fetuses are persons, but persons who have no right to use another person’s body against that person’s will, does have merit. However, the fact that most men and women are responsible for the existence of the fetus (i.e. they freely chose to have sex) becomes a difficulty for the argument. Is it fair to cause a person to become dependent on your body and then say, "you have no right to use my body to live, even though I caused you to become dependent on it?"

  • harry834

    makes pregnancy a state-imposed obligation. Once a woman becomes pregnant, she has no right to decide whether or not to continue that pregnancy…or else she is a murderer,

    right?

  • harry834

    at least a criminal, but the anti-abortion view is that abortion = murder, so that means the woman is a murderer

  • soclosetolife

    A fetus is not a person regardless of whether the personhood of a fetus denies a woman any right.

     

    A fetus is not "socially born" (that is recognized as being alive) until well into a pregnancy. In most societies, including ours, the social birth phenomenon takes place either when a woman announces her pregnancy (ie a wanted pregnancy) or when she begins to show.  A fetus does not become an infant until its actual birth.

     

    The argument that a fetus is a person is an absurd concept when you realize one fact. People have been born. 

  • derekp

    Are laws against child abuse "state-imposed" obligations?  If parents decide they don’t want to take care of their newborn, can they decide to throw them in the trash?  You might cry, "but they can choose adoption instead!" but what gives you the right to put them through the emotional ordeal of giving up their child to some other family?  If they don’t have the right to kill their newborn then aren’t you fascistly arguing for "compulsory parenting" and turning people into "state-controlled nanny centers." Or when people create other people (fetuses and newborns) don’t they sort of have a responsibility to, I don’t know, not kill them? I think we can expect at the least in a civilized to have these kind of "state imposed" obligations.

  • ahunt

    So saying fetuses aren’t persons because their personhood would
    deprive women the right to abort is simply a useless exercise in
    circular reasoning because the right to abort depends on fetuses not being persons in the first place!

     

    Uh… I do not recall anyone here suggesting such reasoning. Can you point me in the right direction, Derek?

     

    Strawman? Logic fail?

  • ahunt

    However, just because granting fetuses rights deprives women of some legal rights to do things (like have abortions) does not mean fetuses are not persons.

     

    IOWs Derek…YOUR "personhood" does not deprive me of the "right" to exercise my legal rights.

     

    No one’s "personhood" can deprive me of my "personhood."
    Are we clear?

  • derekp

    The argument that a fetus is a person is an absurd concept when you realize one fact. People have been born.


    Wow.  I think that just demolished my position . . . until one realizes there is no source for your "fact" that: people have been born. Tell me, where can I look up this fact? Because it sounds similar to:

    MISOGYNIST: The argument that a woman is a person is an absurd concept when you realize one fact. People are men.
    RACIST: The argument that an African American is a person is an absurd concept when you realize one fact. People are white.

     

    And the example could go on. Your form of discrimination is just a societal convention based on location (born vs. unborn) just like previous forms of discrimination.

  • ahunt

    Apples and Oranges.

     

    …you are comparing legitimate state protection of citizens with unwarranted state intrusion into the most intimate arenas of our private lives.

     

     

     

     

  • ahunt

    14th amendment.

  • derekp

    No one’s "personhood" can deprive me of my "personhood." Are we clear?

    ahunt,

    I am not clear what you are saying by "personhood" here. A person is a being that deserves legal rights and standing, like the right to life. I always thought all human beings were persons, I like to be inclusive you see. Now, because I am a person this infringes on your "rights" or "personhood." You can’t steal my property, even if you are suffering in poverty. You can’t eat me, even if you are starving. You could eat or take things from non-persons, like a cow, but because I am a human being you don’t have the right to treat me any way you like, but that doesn’t rob you of your "personhood." Likewise, saying the unborn are people DOES NOT make women "non-persons." Pregnant women still have the right to live, work, speak, and receive medical care. In a pro-life world they would even have the right to peacefully argue for legal abortion under the First Amendment.

    However, their rights must be balanced against the rights of the unborn child they created. Lynn Paltrow’s solution is a simplistic, childish one, "pregnant women have unlimited rights and fetuses have NO RIGHTS." She has created a strawman of the pro-life position by equating it to, "fetuses have unlimited rights and pregnant women have NO RIGHTS." A sensible person can see that both woman and child have rights to balance. At the least, a child’s life shouldn’t be sacrificed for a born person’s social "lifestyle."

  • ahunt

    Wow.  I think that just demolished my position . . . until one
    realizes there is no source for your "fact" that: people have been
    born. Tell me, where can I look up this fact? Because it sounds similar
    to:

    MISOGYNIST: The argument that a woman is a person is an absurd concept when you realize one fact. People are men.
    RACIST: The argument that an African American is a person is an absurd concept when you realize one fact. People are white.



    And the example could go on. Your form of discrimination is just a
    societal convention based on location (born vs. unborn) just like
    previous forms of discrimination.

     

    The distinction being that "women" and "black people" are, in fact, born.

     

    Please do go on with your examples…and permit me to point out that women and African Americans are not located in the womb…for all rational purposes.

  • ahunt

    Well no…and we’ve been over this before…bodily autonomy is intrinsic to one’s "personhood".

     

    Now, because I am a person this infringes on your "rights" or "personhood." You can’t steal my property, even if you are suffering in poverty. You can’t eat me, even if you are starving. You could eat or take things from non-persons, like a cow, but because I am a human being you don’t have the right to treat me any way you like, but that doesn’t rob you of your "personhood." Likewise, saying the unborn are people DOES NOT make women "non-persons." Pregnant women still have the right to live, work, speak, and receive medical care.

     

    You are all over the landscape here, Derek. No one has argued that theft and cannibalism and lawlessness are rights of "personhood."

     

    And you need to get me from theft and cannibalism and lawlessness to…the BZEF’s "personhood," preferably in a logical sequence.

  • harry834

    does that mean that if a female friend of yours was going to get an abortion, what would you do? I’m going to imagine that you wouldn’t use your own force to stop them, but you seem to be advocating for the law’s force to stop them. Suppose they asked some of your other friends/acquaintences to help them get to a state where they could have the abortion. Would you prefer to know that your friends were doing this, or would you prefer not to know?

  • harry834

    don’t think that a person who has your views would never have a friend who sought an abortion. And don’t think such a friend would necessarilly tell that person.

    How might you feel to learn something about that friend? If she was a co-worker? An in-law? A friend of your sister? How might you look at such a person in the eye?

    If they had been unsuccessful in getting the abortion, would you be happier…and not share that? What if they were still trying? 

    Would you just rather be in the dark about it?

  • harry834

    what should (or already is) the punishment be for throwing a newborn in the trash?

    what should the punishment be for a woman who has an abortion?

  • harry834

    what would you do if a female friend of yours did either of the crimes I mentioned? what if it was your daughter? your mother (maybe for a past crime)? Your co-worker? Your boss?

    What would you do if you found out that any of the above women committed the crime of 1.) throwing newborn in the trash, 2.) having an abortion

  • harry834

    while you consider the above examples, compare how you would answer if it was a woman you would never meet in any such personal circle (ie from school, work, family, friends of family). A woman you’ve only seen once. Or maybe someone you’ve never seen. What would you do if she did either of those crimes?

  • derekp

    How I feel changes nothing about the morality of abortion. If someone killed a newborn I would call the police because that is illegal. Abortion is legal so there is nothing I can do. I have friends and relatives who are post abortive. Some regret it. Some do not. They are still my friends and family, everyone deserves mercy and forgiveness. However, in states like Virginia if the baby is killed after birth but is still attached by the umbilical cord, that is legal and there is nothing anyone can do. Watch this Virginia news segment if you can stomach the reality of your permissive views for legal abortion. You may object that the baby was "born" but if being born means "not dependent on someone’s body to live" then this child was not "born."  Dependency is not a reason to kill, and location does not determine value.  However . . .

    . . . "The tyrant will always find a pretext for her tyranny."

  • harry834

    If someone killed a newborn I would call the police because that is
    illegal. Abortion is legal so there is nothing I can do. I have friends
    and relatives who are post abortive. Some regret it. Some do not. They
    are still my friends and family, everyone deserves mercy and
    forgiveness.

     

    my original questions dealt with a specific "someone". You answer only about "someone"…am I to assume you meant all those specific "someone"s I mentioned? I feel I can’t assume that because your sentence about "mercy and forgiveness" for your frends and family leaves me not knowing whether you would call the police on THEM.

  • harry834

    maybe you want to think and get back to us? Also we have private messages.

  • ahunt

    Okay…I’m officially baffled. Not following at all.

  • emma

    Derek, if you found out that your sister had had an abortion, and abortion were illegal, would you call the police?

     

    Also, just so you’re aware: you do not argue convincingly and may want to take steps to rectify that flaw. I’ll also note that, while you did use the slavery analogy, you forgot to include a Holocaust analogy. I’m very disappointed.

  • crowepps

    Certainly in countries where the citizens are under obligation to the State and the State has the right to control them and use them up, that might be true.  For men, of course, the State’s right to their persons is implicit in the compulsory military service.  "Your government has declared war on someone and so you parents must surrend your children and those young men have to drop everything and go kill or be killed."

     

    It’s interesting that in America, where people have various freedoms enshrined in our Constitution, the draft is considered onerous and only justified by times of national emergency.  If young women have an obligation to the State to risk death in pregnancy because their bodies are the property of society, it seems only ‘fair’ for the State to resurrect the draft for all men who haven’t already served so as to make it clear to the men that their bodies are also the property of society as they risk death during military service.

  • ahunt

    Hey, why not “draft” pregnant women? Health care and a stipend?

  • crowepps

    I’ve got to admit, there is a total lack of logic in the simultaneously held positions ‘women are obligated to remain pregnant because society has an interest in the good of the fetus’ and ‘society/the government has no obligation to the good of the fetus that extends to providing the women with food, shelter or medical care  because that’s ‘rewarding promiscuity’.’

  • crowepps

     "The tyrant will always find a pretext for her tyranny."

    I wondered where you had found a quote about tyranny in which the tyrant was a woman (women historically not having had much opportunity to be in that position) so I followed your link.  To my NONastonishment, the quote actually referred to men.  LOL

    The tyrant will always find a pretext for his tyranny, and it is useless for the innocent to try by reasoning to get justice, when the oppressor intends to be unjust.

    Interesting that by reverting to the original gender, it’s possible to see this quote instead as a warning to women that they should stop their attempts ‘to try by reasoning to get justice’ since the extremist ProLife forces have made it crystal clear they intend to be unjust.

     

    Here’s another quote for you, although I can’t attribute it offhand:

    "A woman’s surest defense is to not trust."

  • jacqueline-s-homan

    There really is no comparison between men aged 18-34 being drafted into the military during a national emergency due to war, and the daily conscription of women and girls — from menarche to meneopause — into childbirth chattel slavery, UNCOMPENSATED, at peril to their health, wellbeing, and lives. For starters, women being forced to endure pregnancy after pregnancy against their will and against their best interests over a span of 30-40 years of their lives are not even compensated for the harm done to them and the loss of liberty and right to their own bodies and happiness. At all. 

     

    35-50% of ALL mothers suffer permanent fecal and urinary incontinence, which severely diminishes their quality of life and ability to participate in society with everything from decent employment to non-economic positions in the public square.

     

    Are 35-50% of all men forced to endure repeated torturous pain and permanent damage to their bodies and health from puperty to AARP eligibility (if they live past 35), and moreover, are they forced to do so without fair and adequate compensation? 

     

     

    "Imposing the non-benign medical condition of childbirth, on unwilling women at peril to their health, wellbeing, lives, and liberty; is the ultimate form of chattel slavery — a human rights violation under Article 7(g) of the Rome Statute."