As a majority of states have rejected the application of capital punishment in certain cases, United States law has moved toward mercy, away from cruelty. Consensus about human dignity and the inception of human life now calls for a similar move at the beginning of life.
In his book Just Mercy, attorney Bryan Stevenson recounts an arduous struggle on behalf of clients for justice and mercy against unusual cruelty. The principal narrative of the book—and the focus of the new film—is the riveting story of Walter McMillian, a black resident of Monroe County Alabama who was sentenced to death for another person’s crime. I can’t praise the book highly enough. It’s a tale of suspense, an education, and an inspiration.
Along the way, the book also tells of several landmark Supreme Court victories that have moved the United States away from cruel and unusual punishment. As a majority of states have rejected the application of capital punishment in certain cases, United States law has moved toward mercy, away from cruelty. Consensus about human dignity and the inception of human life now calls for a similar move at the beginning of life.
The Roe Decision
In 1973, the Supreme Court in Roe v. Wade recognized a right to abortion, founded on privacy, up to viability. Decades after the decision, fixed abortion rights and Roe v. Wade now seem nearly synonymous. However, the truth is more nuanced. Attentive reading shows conditionality and latent humility in the decision.
Remarkably, the Court conceded that if the fetus is a person under the Fourteenth Amendment, there would be no right to obtain an abortion because the right to abortion would be superseded by the person’s right to life. In the words of the Court, “[i]f this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
However, while the Court did not conclude that a fetus is a person under the Fourteenth Amendment, the Court inserted a fascinating point, a critical caveat or disclaimer. The Court acknowledged that its opinion was the product of a specific moment in time, dependent on extant factual knowledge and lack of consensus at the time, subject to possible “development.” It stated that, given a lack of “any consensus” then on the question when human life begins, the judiciary “at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” In a fact- and time-sensitive move, the Court left open the possibility or eventuality that if sufficient consensus about the beginning of human life emerged, the parameters of abortion rights would be required to shift with the consensus to protect agreed-upon human life in the womb. Its conclusion was explicitly contingent on the lack of consensus about human life at the time.
This raises an obvious question. In the nearly fifty years since Roe—a long time in both science and law—has there been any development in the level of agreement or consensus on when human life begins? It turns out, science and law have not been stagnant. Surprising consensus has emerged on this point—human life is understood to begin well before viability. To faithfully follow Roe, we must follow this consensus and protect new human life before viability. The analysis of Roe mandates protection of this agreed-upon human life.
Consensus on Abortion and Human Life and Dignity
This consensus appears in many ways. For example, (1) new (post-Roe) laws protect human life in the womb before viability at both the state and federal levels; (2) new uniform definitions of death indicate emergence of human life early in development; (3) public opinion agrees that human life begins early in development; and (4) international law shows current American abortion law to be an aberration or outlier worldwide.
First, a majority of states, and the federal government, have enacted fetal homicide laws to protect new human life from criminal harm before viability. Thirty states extend this protection throughout pregnancy. (Or if Virginia’s law is interpreted to begin protection only after the embryonic stage, then twenty-nine.) Two more states, including California, protect human life starting at the end of the embryonic stage, at about the end of week seven or eight of development. Two additional states protect human life at quickening, when fetal movement can first be felt in the womb, which has been recorded as early as twelve weeks. (Altogether, this amounts to 34 states, or 68% of all states, i.e. a supermajority.)
While these laws often provide that they do not apply to an abortion elected by the woman (avoiding direct conflict with Roe), they evidence a powerful message about the dignity of the human life being protected. First, almost invariably such laws explicitly define a term like “person” or “unborn child” as encompassing the new human being at any stage of development in the womb. Second, these laws typically impose severe punishments for harm to the fetus, punishments that are warranted in degree only if the fetus is understood to be a human life, not just a potential, future human life. Third, these laws establish a separate offense for harming the fetus, rather than simply enhancing the penalty for an offense against the woman.
As one example, the federal Unborn Victims of Violence Act (UVVA), enacted with wide support in 2004, uses the term “unborn child” and explicitly defines “unborn child” as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” As for punishment, with the exception of the death penalty, the penalties imposed for harming an unborn child correspond to the penalties imposed for harming a more mature human being. And the UVVA explicitly identifies harm to the unborn child as a separate offense.
These laws are critically significant. To understand their significance, it’s imperative to realize that the Supreme Court, in Roe v. Wade, specifically relied on the absence of such legal protections for fetuses in the womb in reaching its conclusion on the (then-applicable) parameters of abortion rights. Likewise, in Doe v. Bolton, the 1973 companion case to Roe, Justice Douglas’s concurring opinion specifically noted that “[n]o prosecutor has ever returned a murder indictment charging the taking of the life of a fetus.” Given our evolving standards of decency, described above, this is no longer the case. The fundamental facts relied on in Roe have changed.
A second change is reflected in consensus and codification concerning determination of death. Since Roe v. Wade, a supermajority of states have adopted the Uniform Determination of Death Act (UDDA). This legislation provides that death may be determined by either (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brainstem. The corollary principle is that if either (1) the circulatory or respiratory functions or (2) any part of the brain, including the brainstem, is active, then human life is deemed to be present. Based on this definition, the implication arises that human life begins early in development, during the first trimester, well before viability. Regarding circulatory function, fetal cardiac activity or heartbeat begins a regular rhythm during week four or five of development (week six or seven of gestational age). Regarding brain development and function, the brainstem has begun formation and activity by at least week seven or eight of development.
Indeed, even public opinion polls show the antiquated nature of Roe’s choice of viability as the moment at which human life may be protected. This expression of public conscience represents a third indication or type of consensus. For example, the January 2020 Marist Poll found that 70% of Americans think abortion should be limited to, at most, the first trimester. Likewise, repeated polls in recent years all show that a majority of Americans believe human life begins at least during the first trimester. Several polls in the past two decades show a majority of Americans concluding that human life begins at conception (though not polls in the last couple years). With each subsequent stage of prenatal development, agreement grows that human life is present. Thus, when one considers those who believe human life begins at conception, those who believe it begins by implantation (by about two weeks), those who believe it begins with cardiac activity or heartbeat, and those who believe it begins with initiation of brainstem activity, a significant and sufficient consensus is reached that human life has begun.
Internationally, America’s status quo on abortion is a somewhat extreme outlier as well. This aberration of American law is a fourth indicator that it deviates from consensus. Only seventeen of 199 countries worldwide, counted by the Center for Reproductive Rights, permit abortion without restriction as to reason beyond week ten of development (week twelve gestational age). (Oddly, the Center inaccurately counts Puerto Rico separately from the United States, though it falls under U.S. jurisdiction and constitutional law. To see the duration of a right to unrestricted abortion, look at the footnotes to Box IV of the Center’s chart in the linked page.) That is 8% of the world’s nations.
Further, only nine of 199 countries permit abortion without restriction as to reason beyond week twelve of development (week fourteen gestational age). Or only eight, not counting Puerto Rico separately. That amounts to only 4% of the world’s nations. Certainly, America’s status quo on abortion—guaranteeing abortion up to viability for any reason—is out of line with consensus.
Ironically, Justice Blackmun’s second draft of the Roe v. Wade decision would have established a right to abortion only up to the end of the first trimester. In a November 21, 1972 memorandum accompanying this draft, he suggested this was arbitrary, as arbitrary as any other moment for limiting abortion rights—including viability. (Indeed, Justice Douglas, who ultimately joined the majority in Roe, communicated in a memorandum on December 11, 1972, that he would have preferred to limit abortion rights to the first trimester only, stating simply, “I favor the first trimester, rather than viability.”) However, in light of recent consensus, if there is to be a window for abortion, consensus would indicate a less arbitrary moment to begin recognition and protection of new human life—e.g. the beginning of the fetal heartbeat (or cardiac activity), or the beginning of electrical brainstem activity (which is present at the beginning of the fetal stage of development). By this point, human life is defined to be present under the UDDA. By this latter point, thirty-two states protect new human life from criminal harm.
Under the Supreme Court’s consensus analysis in another context, this majority-level consensus was enough to signal rejection of the cruel practice of capital punishment for intellectually disabled offenders in Atkins v. Virginia (2002). It was enough to prompt rejection of the cruelty of capital punishment for juvenile offenders in Roper v. Simmons (2005). It was enough to prompt rejection of the cruelty of life imprisonment without the possibility of parole for juvenile offenders in Graham v. Florida (2010) and Miller v. Alabama (2012). Now, it is enough to reject cruelty at the beginning of human life as well. Given recent consensus, Roe v. Wade requires this minimal protection. Agreed-upon human life has inalienable dignity and deserves, even requires, protection. We can all agree on this. Human rights begin in the womb, because human life begins in the womb. At the same time, it should be affirmed that the mother’s life has undeniable, unquantifiable dignity, and protection of her life may allow abortion as an exception in some cases, as almost everyone agrees.
This consensus is open to both progressive Democrats and Republicans. It doesn’t depend on who is President. It doesn’t depend on the Supreme Court initially. (Trial courts engage in fact-finding to assess current, relevant facts; apart from judicial notice, appellate courts do not.) Nor does it involve overturning Roe v. Wade. This analysis simply applies the analysis in Roe to current facts and consensus. Even pro-choice folk can agree with a consensus that would protect human life from the beginning of brain formation and brainstem activity. Most abortions occur before then. Almost two-thirds, in fact. More specifically, 65.4% of abortions in the United States occur before or during week six of development (eight of gestation), and 91.1% before or during week eleven of development (thirteen of gestation).
Some skeptics might point to the Supreme Court’s opinion in Planned Parenthood v. Casey (1992), to note that the Court affirmed the central holding of Roe when asked to reexamine its precedent in 1992. However, much of the development in consensus noted above has taken place after the Casey decision. Even more importantly, in reaching its conclusion in Casey, the Court engaged in a very limited review, noting only narrow factual developments—that “advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973 . . . and advances in neonatal care have advanced viability to a point somewhat earlier.” The Court has yet to consider the changed factual landscape alluded to above. As the Court itself said, in Casey, a “change in Roe’s factual underpinning” or a change in the “understanding of [the relevant] facts,” could render “[Roe v. Wade’s] central holding obsolete.” Picking up on this language, the Eighth Circuit Court of Appeals has recently called on the Supreme Court to reevaluate its jurisprudence on abortion, noting that “the facts underlying Roe and Casey may have changed” and “the Court’s viability standard has proven unsatisfactory.” Fidelity to facts and fidelity to Roe now require protection of agreed-upon human life well before viability.
Bending Toward Justice
In his introduction to Just Mercy, Mr. Stevenson writes:
I’ve come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.
This call to justice, to wrap others in a shield of minimum protective dignity, applies to the accused and those at the end of life. It also applies to those innocent ones at the beginning of life, even in the womb, before viability. Consensus agrees on this now. Roe v. Wade now requires this protection. Progress in mercy—both at the end of life and at the beginning—is slowly bending our society toward justice.
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 For expanded discussion, with further facts and nuance, see the law review article, “Abortion Evolution: How Roe v. Wade Has Come to Support a Pro-Life & Pro-Choice Position,” 53 Creighton L. Rev. 157 (2019).
 National Right to Life Committee, “State Homicide Laws That Recognize Unborn Victims,” National Right to Life, April 2, 2018; “State Laws on Fetal Homicide and Penalty-enhancement for Crimes Against Pregnant Women,” National Conference of State Legislatures, May 1, 2018.
 See 18 U.S.C. § 1841(d).
 See 18 U.S.C. § 1841(a)(2)(A).
 See 18 U.S.C. § 1841(a)(1).
 “Determination of Death Act,” published by Uniform Law Commission, 1980.
 “Fetal development,” published by Medline Plus.
 See “Abortion Evolution” notes 25-26.
 Carl Anderson, Andrew Walther, Lee M. Miringoff, and Barbara L. Carvalho, Americans’ Opinions on Abortion (January 2020), distributed by Marist Poll.
 See page twenty-five of the linked pdf.
 See the World’s Abortion Laws.
 Justice Harry A. Blackmun to the Conference, November 21, 1972, Chambers of Justice Harry A. Blackmun, “Memorandum to the Conference,” Administrative Correspondence, Supreme Court of the United States, Just Facts.
 Tara C. Jatlaoui, Maegan E. Boutot, Michele G. Mandel, Maura K. Whiteman et al., “Abortion Surveillance — United States, 2015,” distributed by the Centers for Disease Control and Prevention, 67, no. 13 (November 23, 2018): 1–45.
 MKB Mgmt., Corp. v. Stenehjem (8th Cir. 2015).
The featured image is courtesy of Jonathan English.