Wednesday, July 27, 2005


What most Democrats would like to ask Supreme Court nominee Roberts is "would you vote to overturn Roe v. Wade?" Or possibly, "do you believe abortion is murder?" Or even, "do you believe a woman has the right to an abortion?" The dreaded "litmus test."

But there's another test that's really the most important -- when does fetal viability occur?

Tony Blankley points out in his column today that the Democrats may have overlooked something very important in the rush to try to make abortion rights a central question in the vetting of Roberts.

Roe v. Wade did not grant the absolute right to an abortion. It granted the right to an abortion "prior to fetal viability." After that date, it allowed that each state could then decide whether or not an abortion could be allowed. As Blankley makes clear, when Roe was decided, that pretty much guaranteed the right to an abortion during the first six months of pregnancy. In 1973, that was as early as a fetus could be deemed "viable."

Fast forward.

Today, we've all heard of "miracle babies", some of whom survive as early as 20 weeks -- some earlier -- weighing barely a pound. Further, some scientists are doing research that suggests viability (defined by the Supreme Court as "potentially able to live outside the mother's womb, albeit with artificial aid") could potentially occur at the point of the creation of a fetus.

If that's true, and viability occurs virtually at insemination, then the right to an abortion would be subject to the laws of each state, without any federal intervention.

If this were to occur, it would be interesting to see whether Democrats would advocate the reversal of Roe (or a constitutional amendment) in favor of a more narrow ruling granting the absolute right of abortion, a position that many liberals advocate privately.


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