There is an important aspect in which the debate in the Supreme Court about the constitutional protection of the right to abortion is disconnected from the public debate on abortion. The slogans and posters in the demonstrations in front of the clinics that perform abortions, in the meetings for or against abortion and in much of the discussion in the media, could reasonably lead someone to suppose that the central problem in discussion is whether the fetus is a person or not. People are surely right when they say that the public debate about abortion is fundamentally “a debate about what makes us people” In fact, no Supreme Court justice has ever been committed to the position that Constitution should consider the fetus as a person, and if the Supreme Court were ever to adopt it the implications would be far more radical than those that even the most fervent opponents of Roe seem to be aware of.6 In fact, the contenders of both sides in the abortion dispute they have avoided proposing the argument that abortive methods should minimize any pain experienced by the fetus. The pro-choice contenders fear, perhaps, that this is a slippery slope towards the concession that the fetus is a person. This is not necessarily true, as indicated by the fact that we accept laws that prescribe a humane way of killing animals without giving animals legal rights. On the other hand, it is not clear that the abortive methods that pro-life contenders find most objectionable such as partial birth abortion cause more pain than alternative abortive methods
The American debate on abortion is both passionate and relentless. Rooted in strongly held beliefs, it seems to oppose irreconcilable worldviews, one against the other. The religious convictions that the fetus is a person, and therefore the abortion a homicide, collide precipitously with the insistent and unconditioned affirmation that life begins with birth. Those who believe that global poverty, climate change, and population explosion are the most difficult problems facing humanity are themselves incredulous in the face of spiritual leaders who travel the world condemning abortion and even contraception. Government policies aimed at limiting the birth rate through abortion and family planning are seen by some as lucid and necessary; for others, they amount to a deliberate and unjustified interference with inviolable human rights. Strongly held beliefs that women have a right to sovereign control of their bodies collide with equally firm beliefs that pregnancy carries the responsibility-even if it is not welcome-to carry the pregnancy to term. Even homicide has seemed justified in the eyes of some for the purpose of preventing the performance of an abortion. “No judicial decision in our day,” writes Ronald Dworkin in reference to the decision that the Supreme Court adopted in 1973 in Roe v. Wade, who stated that women had a constitutionally protected right to abortion in the early stages of pregnancy, “has provoked so much outrage, excitement and physical violence from the public, or so much intemperate professional criticism.”
Arguing that the most striking feature of the modern debate about abortion is its endless character. The visions that are confronted one against the other, are “conceptually incommensurable” insofar as, although they are internally consistent, each one rests on rival premises, which “are of such a kind that we do not possess any rational way of evaluating the pretensions of a compared to those of the other. “2 The deep ambivalence and conflicting emotions that people feel in relation to abortion were well reflected in a national opinion poll conducted by the Los Angeles Times in 1989. The survey revealed that although 61% of Americans think that abortion is morally wrong and 57% think it is a homicide, 74% believe nevertheless that “abortion is a decision that has to be made by each woman by herself.” Despite all their contradictory impulses indeed, perhaps partly because of them it seems that people also hope to resolve the debate about the abortion They argue in books, in legislatures, and in the media. They disagree with the reasoning of the other and invoke statistics that they recognize as decisive for some aspect of the matter. Just as they perceive, perhaps, that it is impossible to reach a resolution in the abortion debate, at some level many people can not accept it. There must be a reasonable resolution for the debate, they seem to think; The problem is how to achieve it.
The Supreme Court of the United States for more than three decades has been involved in a race over the problem of abortion. The 1973 decision on Roe vs. Wade, supported by a seven to two majority in the Supreme Court, appeared at that time to be a conclusive resolution of the controversy. However, those who expected this decision to resolve the issue by removing the problem of abortion from the scope of the tense political debate were quickly disappointed. If anything Roe produced, it was that it seemed to intensify and further polarize the public debate about abortion. There has been no stability in the Supreme Court position on the problem of abortion in the years that followed since Roe was dictated. Although the right recognized in that decision was reaffirmed by a clear majority of the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey4 in June 1992, both the content of the right in question and the jurisprudential basis on which it rests, evolved substantially in a number of decisions of the Supreme Court issued during the two decades that mediated between one ruling and another. Indeed, as will be clear later in this paper, the reasoning on which the original Roe decision was based has been largely abandoned by the Supreme Court.
Appeals courts do not listen to witnesses or expert testimony. As a result, they are generally not supposed to review the factual determinations of the lower court. Unless the records contain overwhelming evidence that the lower’s determinations can not be believed, the factual determinations have to be generally taken as given. And even when there is a reason to doubt them, the appropriate remedy is to refer the case to the trial court for a new examination of the case, not to make a different determination of the facts during the review process by an appellate court. From this perspective the dissenters in Stenberg, not the majority, inappropriately relied on their own (lack of) skill in resolving matters of controversial fact. Therefore, it is very controversial when it comes to the topic of abortion.