North Dakota’s House has fired a shot across Roe‘s bow, and may set up the next legal challenge to the 1973 court ruling — if the Senate plays along. Yesterday, they passed legislation explicitly determining the start of human life at conception. If passed into law, it would make abortion an act of murder:
North Dakota’s House of Representatives has passed a bill effectively outlawing abortion.
The House voted 51-41 this afternoon to declare that a fertilized egg has all the rights of any person.
That means a fetus could not be legally aborted without the procedure being considered murder.
Dan Ruby (R) says that the language of this bill exactly comports with Roe, in that it makes an explicit determination of the start of human life. The testimony on this point will prove interesting, assuming it passes into law. Scientists will likely get called to define life in general and the unique composition of a human embryo, eliminating any doubt about the status of the zygote, especially as it begins multiplying. On a scientific basis, life at the zygote stage is indisputable and separate (though dependent) on the mother.
However, don’t count your chickens until the eggs hatch, pun intended. Ruby managed to get this through the House for the first time after several previous attempts. The Senate may sit on this bill rather than put North Dakota into a national firestorm over abortion rights. Such a fight would certainly be costly, and likely futile. The current court has shown no great willingness to revisit Roe, even as some of them have acknowledged the poor construction of the decision, including Ruth Ginsburg.
Let’s hope that North Dakota decides to fight. Roe deserves to be overturned just on the overreach alone of justices finding “emanations” from “penumbras” to instill their own view of public policy. This debate should have remained with the states, and it’s about time that the states demanded their voice in it.
Update: My friend Jazz Shaw disagrees:
They will probably face a few challenges which didn’t get addressed in Roe, at least one on a technicality, and North Dakota may find itself dealing with the law of unintended consequences. On the first issue there is a question which has been brought up before leading to anti-abortion enthusiasts trying to bat it away as a technicality. Many people assume that the Constitution is silent on this subject, and they’re almost right. But the argument has been made that we already have a definition of when the rights of citizens begin, if not the moment when life itself takes root. For this, we point readers to the 14th amendment.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Did you catch the key phrase there? Born or naturalized. So while you may be “alive” or “a person” at the moment of conception, your rights and protections don’t kick in until you somehow manage to exit the mother’s body alive. A technicality, you say? Definitely. But bigger cases have hinged on less in the past.
Well, I think that’s mighty thin gruel myself. Not even Roe tried using that as an origin of an emanation, or a penumbra, or vision from Gaia. The amendment had specifically to do with citizenship, not the start of life, and place of birth is a lot easier to prove than the place one was conceived — and probably a lot less embarrassing, in some instances.
Jazz is right, though, that the language in the North Dakota law would greatly complicate in-vitro fertilization that uses multiple fertilizations and fails to implant all of the resultant embryos. Some will see that complication as a feature rather than a bug, though, and for the same reasons they support this bill — because human life is not a commodity but sacred.