For many people, the landmark Supreme Court decision in Roe v. Wade was a wholesale acceptance
of abortion on demand. People refer to the decision as if Constitutional
scholars envisioned our founding fathers wanting to ensure all women could
abort for any reason.
But the language of the majority opinion does not read like
that at all. I would advise people everywhere to read the decision for
themselves. In the meantime, let me share with you a few highlights.
The majority opinion delivered by Justice Harry Blackmun conceded:
“On the basis of elements such as these, appellant and some amici argue that
the woman’s right is absolute and that she is entitled to terminate her
pregnancy at whatever time, in whatever way, and for whatever reason she alone
chooses. With this we do not agree.”
If the Court rejected the notion that women could abort at
any time or for any reason, what should the restrictions be? Women today abort
their boys if they wanted a girl, and vice versa. That was clearly not the
intent of the Court.
One restriction Justice Blackmun favored was that a woman
and “her responsible physician necessarily will cover in consultation” a
plethora of circumstances before an abortion. The “counseling” done today by
clinic workers is a far cry from “responsible physicians.” Even the abortion
providers are a far cry from “responsible physicians.”
The Justice also expressed limitation when he wrote, “at
some point in time another interest…that of potential human life, becomes significantly
involved. The woman’s privacy is no longer sole and any right of privacy she
possesses must be measured accordingly.”
At the real heart of this issue is whether or not the unborn
child was a life or only the potential for life. The Court realized that if
someone could prove that the child was a living being, it would be entitled to
rights that would supersede the mother’s Fourteenth Amendment.
Jane Roe was the plaintiff for a class action suit against
the abortion laws in the State of Texas. Her defense team argued that her
Fourteenth Amendment right to privacy was violated by the State laws. The State
argued that the child’s right to life must also be considered by the Amendment.
The Court recognized that “The appellee [Wade] and certain amici
argue that the fetus is a ‘person’ within the language and meaning of the
Fourteenth Amendment. In support of this, they outline at length and in detail
the well known facts of fetal development. 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 appellant
[Roe] conceded as much on reargument (sic).”
Blackmun continued: “The Constitution does not define
‘person’ in so many words…the use of the word is such that it has application
only post-natally. None indicates, with any assurance, that it has any possible
pre-natal application.” He was saying that neither the Constitution nor the law
had previously defined when a person becomes a life, and therefore it was
difficult to rule in favor of the unborn versus the born.
That did not stop Texas from trying. “Texas argues that,
apart from the Fourteenth Amendment, life begins at conception…We [the Court] need not
resolve the difficult question of when life begins. When those trained in the
respective disciplines of medicine, philosophy, and theology are unable to
arrive at any consensus, the judiciary, at this point in the development of
man’s knowledge, is not in a position to speculate as to the answer.”
The majority opinion, then, was that the Court did not have
the authority to decide when life begins. The judiciary was established to
interpret the laws, not create new ones; they were in no position to make a
landmark decision that life begins at conception, but conceded that those in
the medical, philosophical, and theological fields could come to an agreement.
Now, 42 years later, they have. Scientific developments,
such as 4D ultrasound technology, and advances in neonatology and embryology, make a strong case that life
begins at conception. The world’s leading theological voices—the Catholic
Church and the Southern Baptist Convention, now teach that life begins at
conception. Many philosophers certainly agree.
There is still no law on the books that says an unborn child
is a life, but that can change. Justice Blackmun concluded, “In short, the
unborn have never been recognized in the law as persons in the whole sense.”
That same argument was once applied to blacks; through the Three-Fifths
Compromise, the Constitution once recognized blacks as only 3/5th of
a person and the property ("chattel") of the white man, but they were eventually emancipated, given rights, and recognized as fully human.
Justice Blackmun attempted to strengthen his belief that
American support was turning in favor of abortion; to do so he wrote, “modern
medical techniques have altered the situation.” He was referring to advances in
abortion practices that made abortion safer (for the mother, of course) since
he felt many only opposed abortion because of the risks. These “modern medical
techniques” should be weighed in favorable light for abortion rights.
But ironically, that same logic can now be weighed in
favorable light for abortion critics. Modern medical techniques and advances
now show that the unborn child is far more than a glob of tissue that doesn’t
resemble a human.
Applying the Fourteenth Amendment to abortion was quite a
reach to begin with. In his dissent, Justice Rehnquist noted, “To reach its
result, the Court necessarily had to find within the scope of the Fourteenth
Amendment a right that was apparently completely unknown to the drafters of the
Amendment.” Indeed, the anti-abortion laws were on the books decades before the
Fourteenth Amendment; the fact that they were not struck down with the passage
of the Amendment says a lot to Mr. Rehnquist’s point.
We are in a better position now then we have ever been.
Momentum is swinging in the unborn’s favor. Bills like the Pain-Capable UnbornChild Protection Act are finally recognizing the unborn as people with
Constitutional rights. Please continue to pray that Roe will be struck down, and that these millions of babies will be
afforded their “right to life.”
