Saturday, November 15, 2008

A quick commentary on Roe v Wade

There has been a lot of airtime, both on the internet and news, lately about abortion and abortion rights. Because of this, I’d like to review some key points in Roe v. Wade’s opinion that was delivered by Justice Blackmun.


“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views… One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.”


Here is a very astute, if obvious, observation.


“Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.”


This is an attitude that is all too rare in today’s world.


“We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in  Lochner v. New York, 198 U.S. 45, 76 (1905):

‘[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.’”


This is what I think is sorely lacking in the abortion debate. This is especially true amongst the anti-abortion set. Pro-choice inherently allows choice, whereas, amongst anti-abortionists or ‘pro-lifers’ there is no room for choice, in their minds.


“…reason is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life.  Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.”


This is, arguably, the most powerful argument against abortion.


“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, see  Griswold v. Connecticut, 381 U.S. 479 (1965);  Eisenstadt v. Baird, 405 U.S. 438 (1972);  id., at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment,  Griswold v. Connecticut, 381 U.S., at 486…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. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”


There are many risks, costs and difficulties associated with pregnancy, birthing and raising children. All citizens possess inherent rights and liberties that are laid out in our constitution. A woman is not deprived of her rights, simply because she becomes pregnant.



“Section 1 of the Fourteenth Amendment contains three references to ‘person.’ The first, in defining ‘citizens,’ speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause.  ‘Person’ is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators…

…the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn. 55 This is in accord with the results reached in those few cases where the issue has been squarely presented.   McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (WD Pa. 1972);  Byrn v. New York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434;  Abele v. Markle, 351 F.Supp. 224 (Conn. 1972), appeal docketed, No. 72-730.  Cf. Cheaney v. State,     Ind., at    , 285 N. E. 2d, at 270;  Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom.   Montana v. Kennedy, 366 U.S. 308 (1961);  Keeler v. Superior Court, 2 Cal. 3d 619, 470 P. 2d 617 (1970);  State v. Dickinson, 28  [*159]  Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed,  our decision in  United States v. Vuitch, 402 U.S. 62 (1971)”


In my opinion, a fetus cannot be considered a “person” simply because it does not have self-consciousness and is not an independent being. Once birthed, the baby is an independent being, although the question of self-consciousness during the first year after birth is contentious.


“It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.  There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics.  It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.  It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.  As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother's womb, albeit with artificial aid.  Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.  The Aristotelian theory of ‘mediate animation,’ that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this ‘ensoulment’ theory from those in the Church who would recognize the existence of life from the moment of conception.  The latter is now, of course, the official belief of the Catholic Church.”


Here is a very interesting overview of the history of the “when does life begin” question.  It demonstrates why there is so much disagreement on the subject. I must say, though, I find the Catholic view of “ensoulment” to be both laughable and pathetic. There is not the slightest evidence for a soul and they appear to be nothing more that wishful thinking.


“In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.  We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct.  Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’”


I agree with almost all points and believe they fit well within our constitution. Yes, the state does have an interest in the life, health and welfare of its citizens. However, this does not trump the personal liberties of one person when it comes to the forced martyrdom of their body for the lives of another. At the latter portion of pregnancy, the fetus becomes viable and, simultaneously, the risks of an abortion become nearly as significant as the risks of the birthing process. Until this changes, the argument that unrestricted late-term abortion appears injudicious.


All quotes from:



No. 70-18 


410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159 

December 13, 1971, Argued 

January 22, 1973, Decided 

No comments: