Monday, January 19, 2015

The Roe v. Wade Decision



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.” 

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