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Abortion and the Law

In a very tangible sense the Declaration of Independence is the formative document of American History. The Constitution, though the underpinning of our governmental framework, came later (1789) and is mainly a pragmatic affair. This, of course, should in no way be misconstrued as to denigrate the Constitution or her wonderfully forward-thinking authors.

Be that as it may, we can still maintain that it is within the Declaration of Independence that one finds the philosophical, perhaps spiritual, foundation of the American experiment. Implicit in this document is the worth of man, separate from his material wealth or meanness of birth. The author tells us that men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness…”1 Even the order here is important as it hearkens us to the national priorities of the new republic. Everything else, whether that is Constitution, Bill of Rights or Amendments, can only exist as adjuncts or protective clauses to these original purposes. Of late, we have betrayed our birthright.

Roe v. Wade

In 1973 the Supreme Court of the United States granted legal sanction to the practice of abortion, i.e. the termination of pregnancy prior to birth. The decisive case was a class-action lawsuit filed by a woman under the pseudonym “Jane Roe.” Roe had attempted to procure an abortion in the state of Texas, but was denied on the basis of a state law that forbade abortion except in cases involving danger to the life of the mother. Roe contested the state’s ruling and her case was argued before the Court on December 13, 1971.2

The decision of the Court was a 7-2 ruling in favor of a woman’s right to procure an abortion. Justice Harry Blackmun fashioned the majority opinion. His rather lengthy ruling is a marvel of speculative legal sophistry. After briefly outlining Roe’s position and thereby establishing her legal standing, Blackmun explores the ancient physicians’ perspective on abortion, and then touches on the common law view of the unborn. Turning to existing constitutional verbiage, Blackmun then seeks to establish a combination of state responsibility and definition of "person" which would allow abortion to continue without state intervention.3

Historical Reasoning in the Case

Blackmun begins his historical justification of abortion by establishing that abortion has long been held in the West as a legal, if somewhat reprehensible occurrence. He cites the rather permissive Greek and Roman attitudes towards abortion and generally convinces the reader that abortion was fairly accepted, even in the ancient world. He goes on to mention, ever so dismissively, the opinions of Soranos and Hippocrates. Both of these physicians belonged to a faction of ancient medical science that was ardently opposed to freewheeling abortion.4 Soranos of Ephesus is widely considered to be the most eminent of antiquity’s gynecologists and was “opposed to Rome’s prevailing free-abortion practices.” Likewise Hippocrates, as is well known, was the Father of Medicine and the source of the famous Hippocratic Oath that still holds the allegiance of doctors the world over. This oath is abundantly clear even in Justice Blackmun’s opinion: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.” In spite of this Blackmun, in one fell swoop, dismisses Hippocrates and his adherents as outside of the mainline of Greek thinking and therefore not pertinent to the debate at hand.5 Clearly ancient opinion concerning abortion could make no claim to homogeneity, but Blackmun, by his cursory treatment of dissenting views, would have the untutored believe that the opponents of abortion were little more than a lunatic fringe in classical society. This is certainly not the case and, furthermore, it denies these great figures their deserved place in medical history. Of course, this line of historical duplicity becomes necessary for Blackmun because, as we shall see, he has endeavored to bury and perplex the opposition with weight of legal precedent, no matter how questionable.

From antiquity Blackmun jumps forward in time to common law, in particular English common law. He discusses, at length, the notion of “quickening” and how it has related to views of abortion in the past. In this context “quickening” refers to the first movement in the womb and the point at which the olde world considered a fetus with life and soul. Blackmun demonstrates, with some cogency, that the termination of life before “quickening” was usually accepted, and, at worst, was considered a misdemeanor. As before, Blackmun mentions dissenting historical examples, but once again describes them as distinct from contemporary popular thought.

The dissection of common law is followed by a review of the legal status of abortion during the early years of America, most specifically at the time of the writing of the Constitution. He explains how abortion laws until the middle of the 19th century or so were, on the whole, more lenient than their modern progeny.6 This in and of itself, however, is insufficient. By the 1860s all states had passed comprehensive abortion legislation.7 One is forced to wonder why the Court disregards this facet of state law? What length of time is necessary for social mores to arrogate legal efficacy in the form of precedent, especially in a country as young as ours?

But these are all really auxiliary matters. The historical quarrel cannot, on its own, establish or break the Court’s ruling. Blackmun knows he needs more than dubious legal precedent to justify his decision. The later half of his judgment is devoted to seeking the intangible explanation he desires.

The Constitutional Wrangle

After reviewing the American Medical Association’s long-standing acrimony towards unfettered abortion and its more recent withdrawals, Blackmun sets out to construct a legal method or framework for dealing with the topic. He begins by addressing the three major bases for proscriptive abortion legislation, and then sets to contravene them. The first two are undermined rather easily. The maintenance of women’s sexual morality—potentially undermined by ease of access to abortion— is shrugged off, as Texas never advanced this as motive for its laws. Blackmun eliminates the second possible reason, namely the danger of the abortion procedure itself, by merely showing that substantial advances in medical science have made abortion no more dangerous than actual childbirth.

The third argument was not as easy to dispel and forms, to this day, the locus of the abortion debate, viz. the State’s interest in protecting prenatal life.8 To accomplish this Blackmun is forced, ex officio, to find some Constitutional ground for his decision. He does so by appealing to the Fourteenth Amendment’s implied “right of privacy” and, subsequently, to the Ninth Amendment’s reservation of non-enumerated rights to the people. In doing so, Blackmun offers as ultimate reason for his decision the implied applicability of these amendments to the matter at hand. Rather than demonstrate this through reason or significant precedent, Blackmun outlines what is lost if states are allowed to circumscribe abortion practices:

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.9

The most casual survey of this litany quickly reveals that Blackmun believes that the mother’s condition, no matter how trivial, trumps the unborn’s right to existence. Such nugatory10 things as the mother’s “psychological” state or the “stigma” she could suffer as a result of pregnancy are more important than the life of the child. He cannot, of course, subscribe to this view unless he also disavows the fetus’ status as a person, for then the Constitution would apply to the child and, therefore, surmount the secondary rights of the mother in favor of the fundamental right of the child to life. To circumvent this problem, Blackmun informs us that the Constitution only defines “person” as the term can be understood postnatally. He achieves this by a sort of convoluted deductive negation. Because the Constitution does not specifically mention “person” in relation to a fetus, he can logically assume that the Constitution does not guarantee the rights of the unborn.11

Still, in essence, Blackmun’s judgment rests heavily on the assumption that a woman’s right to privacy as guaranteed by the Ninth and, more specifically, Fourteenth Amendments can be expansively interpreted to include the right to an abortion, at least until a fetus becomes viable outside the womb. Let us quickly examine the text of the pertinent amendment:

U.S. Constitution: Fourteenth Amendment. Section. 1. 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.12

Even the lay reader is immediately struck by the seeming obvious disconnect between the language of this amendment and the far-flung conclusions drawn by Justice Blackmun. Justice Rehnquist, in his dissenting opinion, gives clearer voice and explanation to this calumny:

I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy…To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. 13

What becomes clear, after the reader has sifted through the weight of superfluous legal and historical evidence, is that Blackmun has no real Constitutional leg to stand on and has perverted both history and law to establish a schema of social justice rooted only in personal predilection. Everything relating to Constitutional law is thrown on its head by the decision handed down in Roe v. Wade. As Justice White observed in his dissenting opinion, “The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”14 By doing this Blackmun has embarked upon a dangerous path of teleological revisionism inconsistent with the laws of this country or the moral prerogatives that form the crux of American governance.

On the one hand Justice Blackmun refuses to define the beginning point of life stating “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus…” Yet, he will, with wanton impunity, define the moment in time at which the State feels compelled to guarantee the life of the unborn. In the Court’s decision this point is “viability” or the time after which the “fetus then presumably has the capability of meaningful life outside the mother’s womb.”15 So, in short shrift, Blackmun both discards all academic and religious thought on the matter and raises his own arbitrary determination in their place. Blackmun refuses to define life, thereby creating, even in his own mind, a penumbra between simple destruction and outright murder, the actual bounds of which he cannot or will not delineate. Though recognizing this obscurity, he still levels a ruling that defines when “life” becomes a matter of State interest. If “life” happens to exist before this arbitrary biological point in time it is not a matter of State concern. This ruling is not only unreasonable; it is obscene.

Even more concerning is the use of the phrase “meaningful life.” What does the Court mean by this? In what way is a mother’s life more meaningful than the helpless life of her child? Do we mean that an unborn child’s life is not meaningful because it does not work or contribute to society? Should we understand that the High Court of the United States defines the value of life in an economic sense? Perhaps we should expunge the destitute and the aged. They have no meaning anymore. The sick should also die expeditiously. Surely a terminal cancer patient’s “capability” for “meaningful life” is as suspect as the fetus’ potential for the same.

Does “meaningful” denote happiness? In this case we have no place for argument because the act of abortion removes any hope of corporeal happiness. All room for comparison is left in a bloody heap on the operating room floor.

The Primacy of Life

Life is always a matter of State concern. In fact, it is the primary and fundamental concern of this or any State. What right can be guaranteed or protected or even discussed if the very right to life is thrown away? No other right can hope to stand if this core value, the one mentioned first and foremost by our founding fathers, hangs on mere caprice. Now approximately 1,370,000 abortions occur per annum in the United States and we are all complicit in this unholy marriage of immorality and legality.16 Terrorism is no more than a pinprick when measured against the slaughter we inflict on ourselves. There is no doubt that the proponents of abortion believe some good is served by their endeavors, but, as history describes in mournful detail, countless mountains of pernicious evil have been built upon a bedrock of “good” intentions.

America is founded primarily on the belief that life, no matter how humble or devoid of station, has value, some measure of divine reflection. To countenance abortion is to undermine the antecedent and sustaining virtues of American vigor. We have discarded the noble ethic of man’s worth and raised vulgar Epicureanism in its stead. And now that the flood has been loosed, the taboo shattered, there is no end to indignities we will inflict on humanity. In effect morality, the cornerstone of our beneficence, is made slave to practicality. Posterity will revile us for this depravation. Americans would do well to cast a nervous eye toward heaven and realize that behind the clouds God broods, contemplating the hour of our imprecation. This country has no more “compelling” interest than to overturn this malediction lest the gates of perdition be swung wide and the fires therein stoked until they consume us all.

1 The Declaration of Independence In Congress, July 4, 1776; The unanimous Declaration of the thirteen united States of America.

2 Roe v. Wade available online at http://www.worldhistory.com/wiki/R/Roe-v.-Wade.htm

3 410 U.S. Supreme Court of the United States Roe, et al. v. Wade, District of Attorney of Dallas County No. 70-18. Blackmun, J.—Opinion of the Court available online at http://members.aol.com/abtrbng/410b1.htm

4 Beksac, Sinan Dr. Soranos of Ephesus available online at http://www.mfm-p.org/society/subpages/hellenic_yazi.html

5 Blackmun J.—Opinion of the Court available online at http://members.aol.com/abtrbng/410b2.htm

6 Blackmun J.—Opinion of the Court available online at http://members.aol.com/abtrbng/410b2.htm

7 About Abortions available online at http://www.hopeclinic.com/AbortionHistory.htm

8 Blackmun J.—Opinion of the Court available online at http://members.aol.com/abtrbng/410b3.htm

9 Blackmun J.—Opinion of the Court available online at http://members.aol.com/abtrbng/410b4.htm

10 I do not mean that these issues are altogether unimportant. They are certainly troubling societal dilemmas. In respect, however, to life these concerns are negligible.

11 Blackmun J.—Opinion of the Court available online at http://members.aol.com/abtrbng/410b4.htm.

12 U.S. Constitution: Fourteenth Amendment available online at findlaw.com reference Fourteenth Amendment.

13 410 U.S. Supreme Court of the United States Roe, et al. v. Wade, District of Attorney of Dallas County No. 70-18. Rehnquist, J.—Dissenting available online at http://members.aol.com/abtrbng/410r1.htm

14 Doe v. Bolton, 410 U.S. 179 (1973). White, J.—Dissenting available online at http://members.aol.com/abtrbng/410white.htm#*1

15 Blackmun J.—Opinion of the Court available online at http://members.aol.com/abtrbng/410b5.htm

16 Figure provided by the Alan Guttmacher Institute available online at http://womensissues.about.com/cs/abortionstats/a/aaabortionstats.htm

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Will, you wrote an excellent essay. It illuminates the issue and taught me a couple things I didn’t know. If "I will not give to a woman a pessary to produce abortion" is in the Hippocratic Oath, how in the hell do doctors justify performing abortions? I also did not realize how truly convoluted was the logic underpinning this ruling. One thing we all need to realize as Americans is that abortion is a multifaceted issue. For one, it’s a states’ rights issue. How is it we live in a country where 7 black-robed lawyers decided for over 250 million Americans and 50 state legislatures what their laws would be vis-a-vis abortion? Another aspect of this argument is obviously moral. To you and I, it’s the most important and really the only one necessary. But in order to engage morally relativist people, you cannot deal in morality. The only critique I can give your essay is that toward the end it’s rooted more in morality than logic. I understand, but someone who doesn’t believe in moral absolutes will just shut you out. In order to engage these people we have to use logic (although plenty of amoral people are also alogical when it comes to abortion- hence it’s always euphemistically referred to as a "woman’s right to choose.") To any pro-choicers out there, I propose a compromise: Strike down Roe vs. Wade and leave it to the states. I would venture to guess that once they all decided, the "choice states" and the "life states" would look a lot like the last couple of electoral college results. And if somebody knocked up his girlfriend in Alabama, he’d have to drive her up to a blue state to get an abortion. It’s not a perfect solution, because a lot of…let’s use a neutral term here…"potential humans" will still never get a chance to enjoy that first right enumerated in the Declaration of Independence. But at least you and I could have the "choice" to live in an abortion-free state, if not country. A warning: before somebody throws in the "rape, incest, or health of the mother" red herring, you damn well better have the intellectual honesty to concede this truth: 99% of the time it’s done for convenience and is therefore morally and legally unjustifiable. If you don’t, I will be all over you like a vegan on a tofurkey.
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God as a Reason by markmcb
From the article:

Americans would do well to cast a nervous eye toward heaven and realize that behind the clouds God broods, contemplating the hour of our imprecation. This country has no more “compelling” interest than to overturn this malediction lest the gates of perdition be swung wide and the fires therein stoked until they consume us all.

I think one must be careful not to sell one’s anti-abortion views, or any views dealing with law, as "because that’s what God says." Despite the fact that Judeo-Christian beliefs were held in higher regard at the time of the Constitution’s writing, one must acknowledge the fact that the Constitutions grants American citizens the freedom of religion and ensures that they will not be subject to church-based national policy. Given this and the wide variety of religions that now inhabit America, any God-backed argument quickly loses a certain amount of credibility in the realm of national laws and decisions of right and wrong. I think this is the most attacked aspect of the majority of pro-life arguments, and rightfully so. I think your argument stands alone without the mention of God. I’m not denying God, however in a country regulated by laws, building your foundation upon an entity that one can never hope to prove exists is an exercise in futility. I think your cause would be better served by knowing that a god, if one exists, will provide you with a certain amount of natural reason to affirm your claims. Aside from the mention of God, I think you have a valid point. I find it odd as well that we won’t allow a dying person, clearly at the end of their rope, to end their own life peacefully, but we have no problem letting a mother kill her unborn child. "Meaningful life" is without a doubt one of the weakest arguments I’ve ever heard. Lucky for you Will, it only applies to unborn babies. ;-) Just kidding… good article.
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Gimme a 1! by Anonymous
Burninating the countryside! Burninating the peasants! Burninating all the people! And tears through cottages!
I know it has nothing to do with abortion but that game yesterday sucked. Damn Army QB. If Navy can make a bowl game, we should be able to. Grumble…
Since everyone that’s willing to reply to this article seems to agree that abortion, in general, is wrong, let’s examine the more specific cases that deal with instances like rape. Is someone who gets raped and had absolutely no intentions of having a child wrong if she gets an abortion? It’s given that the abortion still kills a person, but the circumstances are much different than a girl who was messing around with her boyfiend and made a mistake. In the case of rape, you have a woman that is not only pregnant with a child that she did not want, but she has suddenly become the to-be mother of a rapist’s child. It is undoubtedly a horrible situation. So now as the judge you have two decisions. It is your choice to force the sustained impregnation of an unwilling woman, or allow her to abort the child. Which do you chose? The woman clearly made no effort to make the child, does not want it, and also has the means to remove it. Is it really within the power of a third party to make such a decision for that woman? How does one determine right given two so-called evils? I tend to lean toward allowing abortion in specific instances like this, though it is not without hesitation. Anyone else have thoughts on this issue, or perhaps a stronger justification (for either side) than my own?
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Precedent by Anonymous
I have a question that has bothered me for years. Where does our legal system get off using precedents from other cases to make their own decisions? I sort of understand the concept, but what I don’t understand is how you can use one case, with it’s unique twists and turns to justify a ruling on a completely different case. The argument that a court has come to a ruling on a subject and that becomes the de facto law of the land is ridiculous. Besides, what if the ruling was, God forbid, WRONG? Then an entire series of rulings will continue to be wrong, based on the original ruling. Call me old-fashioned, however, I would rather that the judges use their brains and make the difficult decisions instead of blindly following precedent simply because a different judge had made a similar ruling. Don’t lemmings follow blindly and die by the hundreds when they fall off cliffs? G P.S. I have a problem with our legal system. I think it needs to become a JUSTICE system, but it never will.
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anniversary by willwaddell
Well, this weekend marked the anniversary of Roe v. Wade. It would appear and I would hope that the President will have opportunity to reshape the Supreme Court in order to eliminate its longstanding hypocrisy. I guess we’ll see.

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