When the Supreme Court overturned Roe v. Wade, it claimed to be removing the judiciary from the abortion debate. In reality, it simply gave the courts a macabre new task: deciding how far states can push a patient toward death before allowing her to undergo an emergency abortion.
On Tuesday, the U.S. Court of Appeals for the 5th Circuit offered its own answer, declaring that Texas may prohibit hospitals from providing “stabilizing treatment” to pregnant patients by performing an abortion—withholding the procedure until their condition deteriorates to the point of grievous injury or near-certain death.
The ruling proves what we already know: Roe’s demise has transformed the judiciary into a kind of death panel that holds the power to elevate the potential life of a fetus over the actual life of a patient.
No one is advocating for killing babies. That’s kind of the point, though: abortion is not killing babies. If babies die after abortion, that isn’t murder. That’s just death. And whether or not the baby can survive post-abortion doesn’t factor into that, at least from a position of pure ethics.
But it’s preferable to not let the baby die. We didn’t deny it’s right to life. So if the pregnancy can be terminated without letting the baby die and without a serious adverse effect on the parent, we should do that. What’s fundamentally different after viability isn’t the morality, it’s just what is possible.
I’m pretty inarguably pro choice and I do not think we ought to ban any abortions. Yes, including late term, viable babies. The focus on viability is denying the unconditional right to life. It’s trying to negotiate about when that right emerges in order to make the arguments easier. And it’s an inherently weak strategy because it’s totally subjective. Even when the point of viability occurs is subjective.
If we want to keep babies alive, we should create incentives to prevent abortion and remove disincentives to carrying to term. In the case of a viable fetus, we should make sure the cost of giving birth is not higher than the cost of termination for someone who wants to not be pregnant anymore. But autonomy over your own body is always supreme over right to life. Always.
Not to even get into the fact that late term abortions are definitionally extremely complex , emotional, complicated situations where we definitely do not need the government imposing ridiculous catchall rules.