I’m wondering if given the the furor over Gonzales v. Carhart, the recent Supreme Court decision to uphold bans on so-called partial birth abortion, that people understand that part of the holding in Roe v. Wade was that the State has a legitimate interest in protecting unborn human life. Somehow this always gets missed, to the point now where the popular understanding of Roe seems to be that it provides women a right to terminate a pregnancy any time up until the fetus becomes a teenager. (And you thought abortion jokes couldn’t be done!)

While before viability a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy” (the Court’s Casey decision), it becomes increasingly possible as part of Roe for the state to protect the life of the unborn as it grows in utero. This threshold is ill-defined, of course, because medical science is such that we don’t know specifically when to consider a fetus a human being, inherently imbued with all the rights God gave man (or, if you prefer, that the Constitution gave us—though that’s not the way the framers thought of it).

The Court’s latest abortion decision, then, is less a trampling of rights than it might seem unless one equates Roe with abortion on demand at anytime during a pregnancy, a standard which it never set. One can argue for such a position, of course, but it seems unsupported by all the constitutional jurisprudence since 1973. Even the latest ruling deals only with a rare second or third trimester procedure.

One interesting argument, raised in Justice Thomas'(!) concurrence, noted that no one raised the issue of Congress’ passing this partial birth abortion ban under the power of the Commerce Clause of the Constitution. I’ve got to agree with his implication that it seems a stretch.

Like Roe, the legal tragedy of all this is that unless the Court is specifically defining the fetus as deserving of rights under the Constitution, these matters are more properly resolved at the state level—the federal government has no authority or role to play.