Lindsey Graham, a self-described supporter of the rights of the unborn, went after Supreme Court nominee Elena Kagan today over her views on abortion rights and, more importantly, her understanding of Roe v. Wade and how medical advancements might change the historic Supreme Court decision.
In Roe v. Wade, the court ruled that the states could issue no laws restricting the legality of abortion in the first trimester because it deemed the fetus not viable at that stage and abortion presents few risks to the mother; it allowed states to restrict abortions thereafter insofar as was necessary to preserve the health and life of the mother; and it offered that states might even proscribe abortion, except when necessary to preserve the life or health of the mother, after viability. The ruling, more or less, says that a woman’s privacy is paramount when her health is not endangered and the fetus isn’t viable.
Of course, since the 70s, the viability calculus in the medical community has changed and anti-abortion activists have made much of the potential for significantly restricting women’s access to abortion services based on new medical technologies that help children born earlier in pregnancies survive.
Today, Graham specifically asked Kagan “Is it fair for the court to consider scientific changes when a fetus becomes viable as medical science evolves?” Kagan said that it was fair to consider scientific and technological changes, after which Graham interrupted her. He was glad to hear her opinion… and then compared the potential for restricting women’s right to an abortion because of technological changes to the social changes in society that led to the court’s reversal on the “separate but equal” doctrine between Plessy v. Ferguson and Brown v. Board of Education of Topeka.