The Roe v. Wade Decision

There has been a lot of talk lately about the Supreme Court overturning the landmark Roe v. Wade decision, and this generates strong feelings on both sides of the aisle. If the High Court does reverse Roe, that will mean that each of the fifty states will have the freedom to decide for themselves how to handle the abortion issue. Many people have grown up in the world of Roe (the ruling came in 1973), and have been subtly led to believe that abortion is guaranteed in the Constitution, or that it is somehow “women’s health care.” I want to demonstrate that Roe was written to be reversed.   

 

For many people, the decision in Roe 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 doctors 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. In other words, if the baby is alive, the mother cannot say, “my body, my choice.” 

 

Jane Roe was the plaintiff for a class action suit against the abortion laws in the State of Texas (Her real name is Norma McCorvey; according to her autobiography Won by Love, she became a pro-life advocate and admitted she lied in her lawsuit about having been raped). 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, 48 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. Surveys show that better than 90% of biologists believe life begins at conception. At this point in the development of man’s knowledge, we arrive at a different conclusion than the Court did half a century ago.  

 

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 Black Americans; through the Three-Fifths Compromise, the Constitution once recognized blacks as only 3/5^th of a person and the property ("chattel") of their “owners”, 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. Each fertilized egg is genetically complete, meaning that the child has her own unique DNA, hair and eye color, and gender encoded from the second of conception.  

 

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.” His point was that the founding fathers never included any language that allowed for a mother to kill her pre-born baby, but they did include language that guaranteed every American, no matter how young, to have “the right to life, liberty, and the pursuit of happiness.” Our country once failed to extend that right to African Americans, and thankfully we recognized that egregious error and have been working to correct it. It is past time we recognize our failure to extend the right to life to the unborn Americans and begin to rectify that failure. 

 

Roe was written to be reversed. The ruling challenged the country to come to a consensus. The Court’s job is not to legislate from the bench, so they kicked the can down the road until future generations could better speak to personhood. The time has come to “follow the science” and recognize that every abortion stops a beating heart. The Court must reverse Roe and extend the right to life to all people, for as Dr. Seuss taught us when we were children, “A person is a person, no matter how small.”