With the notorious Roe v. Wade decision of 1973, the Supreme Court departed from reality to embrace legal fiction, denying that human
In the Court's view, the human life of the growing, moving, pain-conscious, and pain-sensitive fetus in the womb is theoretical abstraction, nil. This cockeyed perception has been forced upon every federal judge and shields large numbers of citizens, and the Court itself, from facing the very real fact that abortion is the taking of the life of a human infant.
According to current American law, human life does not begin before viability. But what is viability after all? It is that stage of fetal development when the new being is "potentially able to live [that is, survive] outside the mother's womb, albeit with artificial help" (Roe v. Wade, n. 45). Now, is viability a valid requirement for determining the legal existence of human life?
It is evident that the embryo cannot survive by itself outside the womb, although its life is totally distinct from that of the mother. The vital principle which makes it grow does not come from the mother, but rather has its own independent impulse. In view of this indisputable and objective biological fact, when does an embryo become viable? As applied to embryonic life, what has viability come to mean?
Are premature babies inhuman?
In the last century, premature babies born before the seventh month were generally doomed to death for lack of adequate technical means to keep them alive. Today it is possible to save a baby born after the twentieth week, and scientists are currently seeking to develop an artificial placenta that would make ten-week-old embryos "viable."
"Neonatal medicine," points out Dr. Stuart Kolner, "has decreased the risks associated with premature birth. The World Health Organization adopted the standard of twenty-two weeks as being the dividing line between spontaneous abortion and birth, and newborns as young as twenty-weeks gestational age have survived. Since abortions are routinely performed as late as twenty-four weeks, one can no longer justify such procedures on grounds of fetal non-viability."1
Viable or not, human life is the same. What has changed are the technical means for protecting and improving human gestation. Viability is measured by the sophistication of the life-support systems around the baby, not by the humanness or aliveness of the baby itself.
By the criterion of viability, the senile old person rendered incompetent by a stroke, the completely psychotic individual, or even the quadriplegic war veteran, are not "viable," since they are not capable of an independent existence.
From the philosophical point of view, the argument of viability confuses physical independence with ontological independence. A human individual always has ontological independence, although his or her physical independence varies with the different stages and circumstances of biological life.
Law must recognize natural reality
The law, as much as it may desire otherwise, can neither create a human life nor decree that a human life is not such. The law must limit itself to acknowledging natural reality. In order to ascertain whether there is life or death, the lawmaker is obliged to have recourse to the biologist and the physician, never the other way around. Only arbitrariness could make legality prevail over natural reality.
The inviolable right to life of every innocent human individual constitutes one of the fundamental rights of civil society and its juridical order. From the moment a positive law deprives a category of human beings—the most innocent at that—of legal protection, the sound rule of law is threatened at its very foundations.
1. Stuart James Kolner, "Maternal vs. Fetal Rights," About Issues (American Life League), August-September 1991, p. 35