THE LEGACY OF ROE V. WADE: 47,000,000 DEAD AND COUNTING
On January 22, 2007, America will “celebrate” the 24th anniversary of the U. S. Supreme Court’s decision in
Roe v. Wade. In our society, some wrongs are deemed “wrong in and of themselves.” Others, are deemed wrong only because they are prohibitied by a legislative enactment. Examples of acts that are deemed “wrong in and of themselves,” include murder, rape, and robbery. Distilling whiskey without paying a tax would be a typical example of a neutral act made wrong only because it is prohibited by law.
The bases for judging an act “wrong in and of itself” may come from several sources. Parents teach children that it is wrong to murder. Churches teach that murder violates God’s law. Schools teach that murder is inconsistent with living in a civilized society. An act is deemed “wrong in itself” because the act violates some natural or moral law, or other public principle deemed essential to living in a civilized society.
Locally, Sarah Kolb’s despicable murder and dismemberment of Adrianne Reynolds in January of 2005 serves to illustrate the preceding point. Obviously, there are statutes that make such acts of murder the gravest of crimes. But quite apart from any criminal statute, there is something about Kolb’s loathsome conduct which shocks the conscience of every feeling American. We judge these killings to be wrong in and of themselves - violations of natural law or moral law.
But what happens when our law is changed by our highest court so that an act previously deemed unlawful suddenly becomes lawful? When the act becomes legal, does it also become moral? That, of course, is what drives the furor behind the abortion debate. One segment of our society still sees abortion as wrong in and of itself. The other, either sees no moral wrong in the act, or reasons that since our Supreme Court has said Roe v. Wade that abortion is legal, that it must now also be moral.
Few Americans understand that the
Roe Court did not consider the question of whether a fetus was a human person. The Court considered only the narrower issue of whether the fetus was a “Constitutional Person” -- a “person” within the meaning of the Fourteenth Amendment.
"Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection."
The relevant portion of the Fourteenth Amendment to the U. S. Constitution provides
“... nor shall any State deprive any person of life, liberty, or property, without due process of the law; ....”
The Plaintiff, “Jane Roe,” challenged the Constitutionality of a Texas statute that made it a crime to
"procure an abortion," ... except with respect to "an abortion procured ... by medical advice for the purpose of saving the life of the mother."
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions;" that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy. She claimed that the Texas statutes abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
The court summarized Roe’s contentions, saying
“The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy.”
The court continued
“Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.”
On the other side, the State of Texas argued that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. The Court conceded that,
“If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.”
The court held
“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
To prove that the fetus was a human person, and that it’s “life was protected under the Fourteenth Amendment, Texas had detailed the well-known medical facts of fetal development. The court also made reference to two thousand years of conflicting opinions as to precisely when a fetus becomes a person.
But the personhood of the fetus was decided not as a “question of fact,” but only as a “question of law.” All medical and scientific evidence tending to show the fetus was a person was ignored as irrelevant to the question of whether the fetus was a “person within the meaning of the Fourteenth Amendment.” The Supreme Court, however, decided that matter strictly as a “question of law:”
“... no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”
It is very difficult to disagree with the Supreme Court’s conclusion that the men who passed the Fourteenth Amendment were not concerned with protecting fetuses. Those men, had just emerged from the horrors of the Civil War. They passed the Fourteen Amendment to insure that men of the black race, and others who later might find themselves similarly situated, could look to the Federal goverment in the event any state again tried to deprive them of life or liberty. The men who had saved the Union had no desire to fight a second civil war to vindicate the rights of the next group threatened by State action.
At the same time, however, the records of the debates clearly demonstrate that the the men who passed the Fourteenth Amendment had no notion they were guaranteeing that women would have a right to an abortion. That, too, was far from their thoughts.
In the view of many, the Roe decision is wrongfully decided. It construes just one sentence of the Fourteenth Amendment.
“... nor shall any State deprive any person of life, liberty, or property, without due process of the law; ....”
But, under the court’s holding, the mother’s right to “liberty” is construed expansively, while the fetus’s right to “life” is construed in the narrowest possible fashion. Two words, separated by a mere comma, are construed in diametrically different fashions. This is not consistent with any known legal rule of statutory construction. Had both words been construed narrowly, the Court would have held that abortion was not included within the word “liberty,” and fetal life was not included within the word “life.” Had both words been construed expansively, the mother would have been found to have “liberty” to have an abortion, but the fetus would have been found to have had a right to “life.” A balancing the equities would have then been required in each case.
Mr. Justice Scalia correctly points out a second serious difficulty with Roe’s logic. In America persons are deprived of life and liberty every day. Scalia argues that the Fourteenth Amendment doesn’t preclude imprisonment or capital punishment. It simply requires that before persons can be deprived “liberty” or “life,” they first be afforded “due process,” which since Magna Carta has meant a hearing “in accordance with the laws of the land.” He argues that Roe creates a “liberty” that cannot be curtailed even after a hearing consistent with due process. Such a hearing might take account of the actual personhood of the fetus, notwithstanding the fact that the men who wrote the Fourteenth Amendment never gave the issue a thought.
Those people who believe that abortion is a moral wrong, believe, that at a minimum, that abortion laws should be made based at least on medical and scientific imput. And when it comes to deciding whether fetal life should be protected, and the extent of the protection, they believe that in a democracy that that power should reside with the elected representatives people, rather than with nine judges. Statutes, unlike Constitutional holdings, can be amended as new facts emerge, and as society reevaluates its earlier views.
The Alan Guttmacher Institute compiles its own data from surveys of abortion providers. Its numbers are generally considered the most reliable in the industry. It has estimated that since the Roe decision in 1973 until 1998 there were 38,000,000 abortions in the United States. In 2006, it is estimated that 47,000,000 fetuses have now been aborted since Roe.
Some of those abortions were unquestionably done to protect the lives of the mothers, or to terminate pregnancies caused by rapes or incests. Most thinking Americans agree that such abortions “sound” in “self defense,” and therefore should be allowed.
But what about the rest? Were the lives of those who did not threaten the lives of their mothers, or who were not conceived in rape or incest worth any less than the lives of the children murdered in their schools? Is a fully formed child one day short of a natural birth any less a human person than a one day old newborn? Is it moral to kill a viable fetus for reasons of pure personal convenience?
As of News Year’s Day, our press tells us that the number of American soldiers killed in Iraq has now reached 3000. When the number of dead fetuses reaches 48,000,000 will anybody notice?
Originally published in Moline Dispatch, page A7, January 7, 2007.
Copyright 2007
John Donald O'Shea
