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Galis Is Wrong on Abortion

Leon Galis thinks it inconceivable that the Supreme Court would approve Georgia legislators’ pronouncement that “Modern medical science… demonstrates that unborn children are a class of living, distinct persons…” (“When is a Person a Person?” June 5). He’s right, though not in the sense that he supposes. Galis quotes from a preamble to the bill that changed the law, but the language quoted is confined to the bill itself. It does not modify any part of the Georgia code and, consequently, forms no part of the operative law that the Supreme Court would review. If the Court examines the law, it will consider medical science, but will not likely concern itself with legislators’ opinions about what medicine does or does not prove. It will focus instead on the actual restrictions that the law imposes to determine whether the ability to obtain an abortion is unduly constrained. 

Galis thinks that the question of fetal personhood—are fetuses “persons” under the Constitution?—would figure prominently in the court’s deliberations. He notes that no Supreme Court case identifies prenatal humans as legal persons and seems to conclude that, lacking prior explicit precedent, the court could never find that a fetus embodies personhood. At the same time, however, he refers to the law’s evolving notion of persons. He acknowledges that the category of humans endowed with legal personhood has expanded over time (e.g., formerly, enslaved humans were not legal persons), with each expansion constituting a departure from legal history and precedent. 

Where no direct precedent exists, legal principles often develop through the use of imprecise analogies. Prior to Roe v. Wade, there was no precedent for a right to abortion. In announcing the right, the court extracted principles from dissimilar cases, including those involving contraception, interracial marriage, wiretapping, etc., to expand on the law’s concept of privacy rights. The court’s notions of personhood could similarly expand to include fetuses. The personhood evolution that Galis discusses, then, might one day embrace the unborn.

But the biggest problem with Galis’ argument is his assumption that the court’s decision—and the fate of the laws it reviews—would hinge on its views of fetal personhood in the first place. Galis correctly observes that the case for abortion rights “collapses if fetuses are persons.” It does not follow, however, that states can ban abortion only if the court finds that fetuses are persons. Citing animal cruelty laws, Galis notes that states afford legal protection to non-humans. Similarly, the court could permit states to protect prenatal humans, regardless of their status as legal persons. There are grounds other than “personhood” on which the court could uphold protections for the unborn. 

In fact, the court has already identified and applied at least one of those grounds. The Roe decision accorded states greater latitude to interfere with a woman’s ability to obtain an abortion as gestation progressed—states have greater power to proscribe abortion in later stages of pregnancy. The court did not extend that authority to states based on ideas of fetal personhood, but rather on the states’ interest in protecting “the potentiality of human life.” The promise of human life in unborn children remains a compelling justification for state regulation, sufficient to uphold abortion restrictions unless the court affirms a countervailing right to abortion.