Critique of Roe v. Wade
david ford
This is a choppy and less than complete essay written a couple years
back after reading the majority opinion handed down in _Roe_. I will
not be replying to responses to this piece.
The Supreme Court's 1973 decision in _Roe_ v. _Wade_ was made by, to
use Mario Cuomo's term, "enlightened" justices on the high court. This
essay's thesis is that the decision was inconsistent, arbitrary, and
based on extra-constitutional grounds.
Concerning the opinion's rejection of States' desire to protect
prenatal life, the Court makes the point that within the context of the
Constitution, references to persons involve only postnatal application.
Agreed. The drafters and ratifiers had no known intention of making a
statement or decision about the right to not be deprived of life
without due process applicable to the preborn. But by the same token,
neither did those involved in the ratification of the amendment have
any intention of making or approving a provision of privacy that
included the right to abortion.
If the Court is going to reject the claim that the Fourteenth's
prohibition that States cannot deprive citizens of life, liberty, or
property without due process of law is inapplicable to preborn life on
the grounds that those involved in the ratification of the amendment
had no such intention in mind, then the Court should be consistent and
not invent out thin air a right to privacy that includes the procedure
of abortion when both proposers and ratifiers of the Fourteenth had
absolutely no idea that the Amendments's "concept of personal liberty
and restrictions upon state action" was even peripherally "broad enough
to encompass a woman's decision whether or not to terminate her
pregnancy."[1] Laws existed in the ratifying states contrary to what
the Court imposed in _Roe_; slightly prior to the ratification of the
Fourteenth Amendment in 1868, 36 states and territories had laws
restricting abortion.[2]
In sum, the Court was inconsistent in interpreting the Constitution's
Fourteenth Amendment extremely loosely in connection with the
concoction of a right to privacy that included abortion while at the
same time strictly abiding by the text's and ratifiers' intentions
regarding the non-applicability of the Amendment's provisions to
preborn life.
Within the opinion's paragraph dealing with the concept of a right to
privacy that includes the right to abortion, the majority opinion goes
on to outline what it thinks are valid reasons for its opposition to a
state's regulation resulting in severely restricted access to abortion.
Included is the right to be free of having "mental and physical
health... taxed by child care," free of imminent "psychological harm,"
free of "distress... associated with the unwanted child."[3]
Can the Court be really serious in suggesting that persons making
choices (in most pertinent cases, the decision to have sex-- with no
reference to instances where free will was not a factor, as in cases of
rape and incest) that result in distress for the person making the
decision ought not have to live with the results of those decisions,
however self-imposed for self-induced those distressful conditions may
be? In putting its imprimatur on the shirking of discomforts caused by
one's self, the Court asks for a society where responsibility is an
empty word.
A three part framework was imposed by the Court on the States as
follows: a) In the first trimester of gestation, the State is not
permitted to interfere with decisions involving abortion. b) Between
the first and second trimester, the State may regulate abortion to
protect maternal health. c) Following viability, "the State in
promoting its interest in the potentiality of human life"[4] is allowed
to regulate or even outlaw abortion except in cases where abortion is
needed to preserve the life or health of the mother. This framework
was made on the basis of the concept of viability and abortion
mortality statistics in the first trimester as compared with mortality
in regular birth. States Blackman,
Physicians and their scientific colleagues 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."[5]
Justice Blackman continues, "Viability is usually placed at about seven
months (28 weeks) but may occur earlier, even at 24 weeks." Try 20
weeks, Justice Blackman. Marcus Richardson was born in 1972 at 19
weeks, 6 days, and has survived as a perfectly normal child.[6]
Viability is continually being pushed back through the use of
increasingly sophisticated medical machines. The Court's edict
regarding abortion in the first and second trimesters is based solely
on "the 'compelling' point" at about the end of the first trimester,
the point existing at the time at which "first trimester mortality in
abortion [is] less than mortality in normal childbirth."
The statistics in this regard may change in the future, if they have
not done so already, and yet, even as the Court's stated basis for its
trimester policy may change in the face of advancing medical knowledge
and skill, the decision lives on, although with some modifications by
successive Supreme Courts. At least laws imposed by legislatures can
be corrected much more easily when statistical situations and shifting
medical classifications adjust than can laws imposed by a court system
whose job is supposed to be to interpret the law rather than make it.
In part c) of the trimester framework, the Court's absolute allowance
of third trimester abortions performed for purposes of "preservation of
the life or health of the mother" has been claimed to include the
mental health of the woman. Such a claim would destroy the Court's
supposed permitting of States to proscribe third term abortions, since
the reason that the Court disallowed total prohibition of abortion
included reasons pertaining to the all-inclusive category of mental
health through the use of such words and phrases as "psychological
harm," "mental and physical health," "stigma of unwed motherhood," and
"distress."[7]
In its decision, the Court stated that "at some point in pregnancy...
sufficiently compelling interests," interests which include "protecting
potential life," may "become sufficiently compelling to sustain
regulation of the factors that govern the abortion decision."[8] In
another instance of inconsistency, the Court went on to assert that no
definitive answer as to when life begins has been discovered, and yet
as shown in the above quote, the justices made the decision that
whatever is in a pregnant woman is "potential life," implying that the
embryo, fertilized egg, fetus, etc., is neither life nor non-life, but
simply potential life.
Before noting the wide array of proposed answers to the problem of when
life begins, Justice Blackman states "We need not resolve the difficult
question of when life begins."[9] Blackman speaks the truth in
suggesting that a definitive answer to the question of when exactly
life begins may never be found, but he acts as if the lack of a
consensus as to the correct answer results in the Court's not having to
make a decision as to when life begins; when there is no established
answer, as Blackman so well points out, the Court must act as if what
is taking form within a pregnant woman _is_ a life.
The analogy has been drawn that if there was any doubt that the tearing
down of a dilapidated building would result in the death of a homeless
person rumored to reside therein, the only moral course of action would
be to ensure that there was no such person, or any other human, for
that matter, within the building during the wrecking.[10] The issue at
hand is very similar, and the burden of proof rests upon the person, or
in this case, the Supreme Court, wishing to allow or bring about an
abortion, to show that what is being done does not result in the taking
of an innocent/guiltless human life.
Amendment XIV
SECTION I. 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.
Notes
1. Roe et. al. v. Wade, District Attorney of Dallas County, opinion of
the court, in _US Reports_, Vol. 410, cased adjudged in the Supreme
Court at Oct. term, 1972, pg. 153.
2. 174-5, from the Rehnquist dissenting opinion.
3. Opinion of the court, 153.
4. 164-5.
5. Somewhere in the majority opinion.
6. Jane Chastain, _I'd Speak out on the Issues if I Only Knew What to
Say_ (USA: Regal Books, 1987), 77.
7. 153.
8. 154.
9. IX paragraph begins "Texas urges that."
10. Alan Keyes make this analogy on the Alan Keyes Show while on WCBM,
AM 680, Baltimore.
Alan B. Mac Farlane
You have heard that Roe verses Wade is just a tough choice in the river of life.
If you are more awakened you could swim or sunbathe on the shore in making
that choice - not wanting to put to fine of a point on the rejoinder.
It's an old joke well known by the old timers.
Alan
posted and mailed for comsec
--
Alan Brainiac Mac Farlane
Disclaimer, don't need no stinkin disclaimer. I am on a Macintosh !
mpa...@pacbell.com
david ford <dfo...@gl.umbc.edu> wrote verbosely:
<snip>
DF>pregnancy."[1] Laws existed in the ratifying states contrary to what
DF>the Court imposed in _Roe_; slightly prior to the ratification of the
DF>Fourteenth Amendment in 1868, 36 states and territories had laws
DF>restricting abortion.[2]
<snip>
you neglect to mention that all of these laws were written to protect
the woman, not the fetus. Abortion pills of that era were various
poisons to be taken in doses sufficent to kill the fetus without killing
the woman as well.
---
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