REVISITING ROE VS WADE
January 16, 2012
In his book "How to Stop Dialogue In Its Tracks", Sacha Baron Cohen provides three awkward statements for guys that can be employed to bring a lousy date to a quick conclusion; “I just believe that environmentalists should mind their own business.” Or, 2. “Don’t you find the obsolescence of the slide rule to be terribly regrettable?” And, 3. “Does the Roe versus Wade decision trouble you as much as it does me?”
In recognition of the 39th anniversary of the Roe v. Wade ruling this week, I am going to jump right on topic number three. OK, there is no such book called "How to Stop Dialogue In Its Tracks." But if there were, Sacha Baron Cohen surely would have been the author.
In spite of there having been a Supreme Court ruling in 1973, the pro-life versus pro-choice political debate remains unsettled in America after all these years. There are three good reasons for this.
First is the abject sloppiness of the Roe versus Wade legal ruling. The majority opinion, delivered by Associate Justice Blackmun, cited a right to privacy given to pregnant women by way of the due process clause in Section 1 of the Fourteenth Amendment. Here is that very wording of the amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The reason that you don’t see the word “privacy” anywhere in there is because Section 1 was written to eliminate the practice of slavery in the privacy of the plantation. The notion that behavior done in private should be exempt from state laws is a Pandora’s Box that could apply to the worst of domestic behavior if carried to its logical conclusion. Harry Blackmun did not pull the idea of privacy out of sound jurisprudence. He pulled it out of his own jurist posterior.
Judge Robert Bork wrote this about the Roe v. Wade ruling in his landmark book, The Tempting of America, “Unfortunately, in the entire opinion, there is not one line of explanation, not one sentence that qualifies as legal argument.”
The second reason that the abortion matter is not settled is that it is disquieting to people of good conscience. And to my fellow pro-lifers, I will assert that we need to mature our side of the debate to a point where pro-choice proponents do not feel like we are casting judgment against them. Please understand that they are dealing with a personal uneasiness in their own lives. We should be about winning their hearts rather than defeating their priorities.
I believe that the primary reason that settling answers about abortion are so elusive is that the wrong questions were asked by the Supreme Court in 1973, led by Chief Justice Warren Burger. During the Roe v. Wade hearings, the justices posed questions in an attempt to establish conclusions about when life begins in the development of an unborn human. The prosecution provided expert testimony, presenting the latest scientific guesswork of the period. All of the phases of in-utero fetal development were described to the court.
Out of that conversation, the notion of trimesters was adopted in the majority opinion. The court reasoned that during the first trimester, the fetus was not to be considered a person. With that understanding, the Fourteenth Amendment wording, “nor shall any State deprive any person of life” would not apply.
As the fetus develops, states are allowed to add restrictions on abortions up to the point of birth. But no personhood is assumed until a live birth is complete. Even the Partial-Birth Abortion Ban Act of 2003 merely outlaws the procedure. It does not attempt to outlaw the destruction of the fetus, which is likely how the law was possible to be upheld by the Supreme Court in 2007.
The mess that will not be resolved began with the assumption by Justice Burger that the Supreme Court had the authority to determine when life begins; that they owned the role of assigning personhood to the fetus at a point in development; that the Supreme Court Justices could endow people with the right to life.
The problem is that the Burger court forgot that the Supreme Court is an instrument of the government, instituted by the people and deriving their just powers from the consent of those people. A branch of that government should not even entertain the idea that they are in the position of the Creator. As the founders realized and recorded, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
The Supreme Court does not endow us with our rights. They merely secure the rights already endowed to us by our Creator.
So, when does life begin?
Interesting conversation for a good date, but not the business of government employees; even those employed as Supreme Court Justices.
We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.