Editor’s note: This article was initially published in The Daily Gazette, Swarthmore’s online, daily newspaper founded in Fall 1996. As of Fall 2018, the DG has merged with The Phoenix. See the about page to read more about the DG.
On Monday night, Swarthmore Students Supporting Life sponsored a lecture by lawyers Nikolas Nikas and Dorinda Bordlee of the Bioethics Defense Fund entitled “Bioethics at the Brink: Partial-Birth Abortion and the Supreme Court.” The Bioethics Defense Fund is an anti-abortion, anti-stem cells lobbying agency whose motto is “Human Rights from Beginning to End,”; last night’s lecture focused on the legal history of abortion.
Two cases about the Partial-Birth Abortion Ban Act, Gonzales v. Planned Parenthood and Gonzales v. Carhart, will be heard before the Supreme Court on Wednesday. Nikas began the lecture by saying that when Roe v. Wade came down in 1973, “nobody imagined that there would be 45-50 million abortions thirty-three years later.” In Roe v. Wade, two attorneys challenged a Texas statue stating that it was a crime to procure an abortion except for the purpose of saving the life of the mother on the grounds that it abridged women’s right to personal privacy.
It was difficult to locate the origin of this right in the constitution, and the lawyers argued that it came from decisions on the 1st, 4th, 5th, 9th, and 14th amendments, as well as from the “penumbra” of the Bill of Rights. As Nikas explained, the Court concluded that the right of privacy as founded in these various amendments is broad enough to encompass a woman’s decision to terminate her pregnancy. Because of the difficulty of locating the right to privacy in the constitution, people on both sides of the abortion debate think that Roe v. Wade, which was approved by a 7-2 majority of the court, was a problematic legal decision.
Nikas stressed that in the 14th Amendment, which states that no state will “deprive any person of life, liberty, or property, without due process of law,” the Court wrote that the word “person” did not include the unborn. Nikas disputed the validity of this interpretation, claiming that the scientific evidence shows that “there is a human life with potential in the womb, not a potential human life.”
Although Roe v. Wade said that there could be no third trimester abortion except when it threatened the life or health of the mother, the companion decision Doe v. Bolton defined a woman’s health as encompassing physical, emotional, psychological, and familial factors, which, according to Nikas, means that “because of the Doe definition of health, life-threatening conditions need not exist in order for a woman to get a third trimester abortion.” Nikas went on to claim that this makes the USA one of the countries with the “most broad, liberal, and radical abortion regime in the world,” since most European countries do ban third-trimester abortion.
The next abortion case heard by the Supreme Court was Planned Parenthood v. Casey in 1992. The Court reaffirmed the decision of Roe v. Wade by a 6-3 majority, concluding that “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” The court admitted that they had “reservations about reaffirming Roe,” but decided that these reservations were outweighed by “the explication of individual liberty combined with the force of stare decisis.” Stare decisis is the principle that the court should not overturn its own precedents unless there is a strong reason to do so. Because women had come to rely on abortion’s availability, said Nikas, the court was convinced that abortion had to stay legal.
At this point Bordlee began speaking, first comparing the use of stare decisis in Roe v. Wade to the potential use of stare decisis in any civil rights case after Dred Scott, since “slavery was part of the fabric of the nation in the same way that abortion is now.” Bordlee interpreted Roe as an “illegitimate act of judical power.”
Bordlee quoted some of the original women’s rights advocates to show that they did not equate equality with abortion. Susan B. Anthony and Elizabeth Cady Stanton both saw abortion as a degrading choice that women were often forced into by their husband or boyfriend, and Alice Paul once said that “abortion is the ultimate exploitation of women.”
She then went on to discuss the 2000 case of Stenberg v. Carhart, in which the Supreme Court struck down the Nebraska Partial Birth Statute, which stated that “No partial-birth abortion shall be performed unless such procedure is necessary to save life of mother.” In partial-birth abortion, “there is partial vaginal delivery before killing the unborn child.” Nikas and Bordlee wrote a brief in favor of the Nebraska statute using the inevitable birth argument, saying that since partial-birth abortion places the child in the birth canal, “it is inevitable that the birth will occur… this act of birth terminates the pregnancy, and the subsequent killing of the child is infanticide, not abortion.”
The court decided against the Nebraska statute by a 5-4 vote, as the majority struck down the law because it had no health exception and also put an “undue burden” on a woman’s ability to choose a dilation and extraction abortion, which is the most common abortion method in the second trimester. This decision also struck down the laws of thirty other states.
After President Bush was elected, he and Congress enacted the 2003 Federal Partial-Birth Abortion Ban Act, which states that in a partial-birth abortion, the doctor “must deliberately and intentionally deliver a living fetus until the head is outside the body of the mother for purposes of performing an overt act that the person knows will kill the partially delivered living fetus and then perform that overt act.” The act also criminalizes the provider of the abortion and not the woman, said Bordlee, an important distinction because it “recognizes that women are often in this situation by coercion… they are often the second victims of abortions.” The ban also makes exception for the life of the mother.
Gonzales v. Planned Parenthood and Gonzales v. Carhart are the cases on this ban to be heard on Wednesday, and pundits have had difficulty predicting the outcome of the cases. Although five of the nine justices would probably support a partial-birth abortion ban, some of these justices might not like the fact that this is a federal law, and might strike it down because they believe that such matters should be left to the states. Nikas and Bordlee will be in the courtroom on Wednesday watching the hearing for this case.
The lecture on partial-birth abortion was followed by a quick presentation on cloning and stem-cell research. Nikas told the group that “cloning is simply asexual reproduction… once you have the one-cell sheep embryo, cloning has already occurred.” The one-cell embryo then develops into a blastocyst from which either embryonic stem cells can be taken, or a living creature can be birthed, although nobody has actually managed to create a human from the blastocyst yet. Because of this, claimed Nikas, people who say that they are against cloning but in favor of stem-cell research are being dishonest. You can either clone for biomedical research or clone to produce children, but “all cloning is reproductive.”
While Nikas has ethical objections to cloning for biomedical research, he stressed the scientific side. According to him, “there have been no advances with embryonic stem cell research… for the last twenty years, it has been a complete and utter failure.” While adult stem cells, from nasal mucus and umbilical cords, among other places, have been used to cure people, the hype is over embryonic stem cells, and they have done nothing.
Bordlee claimed this is because “scientists cannot patent adult stem cells, but they can get rich off of stem cell research,” since many scientists hold patents on the processes for gathering embryonic stem cells. This issue is also timely, since today Missouri citizens will vote on a stem cell amendment that according to Bordlee “buys the constitutional right to clone in Missouri.” One thing Bordlee is especially worried about is the health of the women from whom eggs for these purposes are harvested, who are injected with hormones so that they will drop multiple eggs in one cycle. Excess hormones can cause health problems for women. Nikas and Bordlee have worked against this amendment, and it currently looks as if it will not be passed.
Professor Scott Gilbert of the Biology department expressed disappointment with the choice of speakers. “I am disappointed that the Biology Department was not alerted to the ‘Bioethics Briefing’ on Partial Birth Abortion and Cloning,” he wrote in an e-mail on Sunday, continuing on to say that he and his his students have written a well-reviewed book on bioethics that disagrees with many of the Bioethics Defense Fund’s conclusions. “Our chapter on when human personhood begins can be gotten off the web at http://www.sinauer.com/pdf/BioethicsCh02.pdf.”
The large turnout at the event provided evidence that many Swarthmore students appreciated the opportunity to hear a pro-life perspective on campus.