Like many other Americans, I listened to the oral arguments earlier this week in the case of Dobbs v. Jackson Women’s Health Organization. The case stems from a challenge to the constitutionality of a Mississippi law that bans abortions after 15 weeks of gestation except in the event of a medical emergency or severe fetal abnormality.
Among the most substantively probing of the questions posed were those of Justice Clarence Thomas to the respective counsels for the Respondents and the United States. These exchanges emphasized one of the absurd consequences of Roe v. Wade and Planned Parenthood v. Casey: A pre-viable individual may be protected from harm under a state’s criminal laws, but not in the context of consensual abortion.
An example of this anomaly is found in my home state of Illinois. It may be surprising to some that even the legislature of such a liberal state as Illinois protects, in its criminal code, the life of an unborn child. Illinois law prohibits the act of killing of an unborn child by an individual other than the pregnant individual, and the law provides an exemption for consensual abortion. 720 ILCS 5/9-1.2.
And how does Illinois law define an unborn child? Illinois does not restrict the scope of its protection of unborn children to only those individuals who are 24 weeks or older. Instead, the definition of an unborn child under Illinois law is “any individual of the human species from the implantation of an embryo until birth.” 720 ILCS 5/9-1.2. Up until just a few years ago, Illinois defined an unborn child even more broadly as an “individual of the human species from fertilization until birth.”
Yes, even Illinois recognizes that pre-viable individuals deserve protection from harm. Illinois has long acknowledged and codified the state’s interest in protecting unborn individuals, by enacting a law to punish those who criminally kill them. Yet, in doing so, it presents an untenable position: One in which the state considers an “individual of the human species from the implantation of an embryo until birth” as a life worthy of protection from being killed by a person other than the pregnant individual, but does not recognize such an individual life as one worthy of protection from being killed through an elective abortion procedure.
Any attempt to discern a logical distinction between a state’s interest in protecting the lives of unborn children through its criminal laws, yet allowing elective abortion in compliance with Supreme Court precedent, is certainly a challenging task. This conflict is likely the reason why Justice Clarence Thomas posed questions along this line of inquiry to the attorney for the Respondents and the attorney for the Government during the oral argument.
Justice Thomas’ questions posed to the Respondents’ attorney involved a case out of South Carolina concerning a woman who had been criminally prosecuted for child neglect for having ingested cocaine while pregnant. Justice Thomas pointed out that the prosecution in that case involved a situation of a post-viability pregnancy. However, Justice Thomas queried as to whether the state of South Carolina would have had an interest in criminally prosecuting the woman, if the woman had ingested the cocaine pre-viability and if the same negative consequences to her child had resulted.
The attorney for the Respondents replied to Justice Thomas’ question with: “The state may have, Your Honor. The state can certainly regulate to serve its interests in fetal life and in women’s health. Those particular laws tend to undermine both of those interests because they deter women from seeking prenatal care, which is counterproductive to both their health.” See, supremecourt.gov; Dobbs v. Jackson, No. 19-1392, Transcript at page 50. When pressed to clarify whether the state’s interest would apply in the context of criminal child neglect involving the ingestion of an illegal substance causing harm to a pre-viability fetus, the Respondents’ attorney conceded that the states “***can certainly regulate throughout pregnancy, both before and after viability, to preserve fetal life and to preserve the woman’s health. * * *” Transcript at 50-51.
When Justice Thomas posed a similar question to the Solicitor General for the United States as to whether a woman’s liberty interest would extend to the situation of criminal child neglect, the attorney acknowledged that the state would have an interest in protecting a child that has been born but that was injured while in the womb and that “Roe recognized that states have interests that exist from the outset of pregnancy.” Transcript at 103-104. She proceeded to argue that, “But, with respect to this specific right to abortion, there are also profound liberty interests of the woman on the other side of the scale in not being forced to continue with a pregnancy, not being forced to endure childbirth and to have a child out in the world. And the state’s arguments here seem to ask this Court to look only at its interests and to ignore entirely those incredibly weighty interests of the women on the other side.” Transcript at 104.
Each of these responses is consistent with Roe, which recognizes the State’s “important and legitimate interest in protecting the potentiality of human life,” [410 U.S. 113, 162 (1973)] as well as Planned Parenthood v. Casey, [505 U.S. 833, 876 (1992)] which recognizes a “substantial state interest in potential life throughout pregnancy.” But what the responses to Justice Thomas’ questions fail to adequately address, and what cannot be logically reconciled, is how the law can countenance the taking of an individual fetal life in the instance of an elective abortion, yet criminalize the harming of an individual fetal life in the instance of ingestion of drugs by the mother.
It will be interesting to see, how, if at all, this particular aspect of the oral argument ultimately plays out in the Supreme Court’s opinion.