Woe to Roe

By Phil Angus. on April 1, 2019 in Law
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The landmark abortion case, Roe v. Wade, forever changed the judicial landscape in the United States. Despite vociferous debate on both sides of the issue of abortion, no clear consensus has been formulated concerning whether abortion should be legal. Indeed, two sharply opposing groups, feminists and religious conservatives, have assembled bases of power around this one highly contentious issue. Although rational persons can, and most certainly do, argue whether abortion is the taking of human life, the majority’s position that states have no power to restrict it is wantonly lacking.

The majority in Roe established a right to abortion via the Constitution‘s implied right to privacy that it inferred from its textual connotations. Writing for the majority, Justice Blackmun’s decision conceded that there was no explicit right to privacy on which to base his decision. Therefore, to support this inferred right of implied privacy, he invoked the powers of the fourteenth and ninth amendments to establish this right. Concededly, this right to privacy may be reasonably inferred. The issue of abortion, however, becomes the stumbling block for the majority as Blackmun struggles to establish a tenable position.

Woe to Roe
Pretty lawyer and physician talking about doctor’s medical error

Clearly stretching constitutional limits, the majority argues that this implied right to privacy must necessarily extend to a subject that involves complex medical and ethical issues. In the case of abortion, which had never previously been a matter of federal jurisdiction, the majority suggests that reproduction is a private matter between a woman and her physician. This contention seems sound. This analysis fails, however, in that it ignores the third, and perhaps most crucial, the element of this debate: the living, breathing child developing inside the womb.

Although there are no hierarchical imperatives, the right to life is generally considered a right of the highest magnitude. Before the ratification of the Constitution, the Declaration of Independence boldly proclaimed the vision of this great country. The founders’ core principles of the Declaration guaranteed to all the right to “Life, Liberty, and the Pursuit- of Happiness.” Assuredly, the sequence of these entitlements is determinative as to their importance. Thus, although each of these is important, the Constitution was established to collectively and individually provide for these rights through the rule of law in order of their importance to a civilized society. Clearly, any analysis of American jurisprudence reaffirms this basic understanding. Indeed, this analysis need not be detailed or complex. Even laymen understand that the right to life trumps the right to privacy, which, in turn, trumps the right to pursue happiness

Woe to Roe

Therefore, in light of this understanding, where does the constitutional right to an abortion lie? If it is inherent in the implied right to privacy gleaned from the text of the Constitution, why is the right to life, mentioned first in the Declaration, subject to such categorical, assiduous constitutional irrelevance? In short, why does the implied right to privacy (liberty) eclipse the express right to life? Furthermore, what argument can be made that states do not have the right to protect the lives of their citizens?

Subject to the constraints of the Constitution, states can, and most obviously do, restrict the freedoms of their citizens concerning the taking of human life. Although there is no question that all states have laws criminalizing the unjustified taking of the lives of other hominids, this justification subject, of course, to such limitations as the defense of life or limb, states can constitutionally deny their citizens the right to take their own lives. Consider, for example, the various arguments concerning voluntary human euthanasia. Dr. Jack Kevorkian argued that his patients had the right to allow him to assist them in procuring their own deaths. After extensive legal wrangling, the state of Michigan determined that Kevorkian did not have this right. Michigan quite reasonably argued that the right to die is not one that is legally protected, which, unfortunately for Kevorkian criminalized his many assisted suicides. Similarly, the abortion debate applies to the right to choose the termination of a pregnancy, and, hence, the right to terminate a life.

Woe to Roe

Now, the argument may turn on what defines “human life.” Some argue that life begins at conception; others at birth. Few would argue, however, that the unborn, whether described as a “fetus” or a “child,” at the very least can be said to show medically proven “signs” of life, e.g., heartbeat respiration, responses to various stimuli, etc. And, furthermore, all of these are becoming measured at increasingly earlier stages in the gestational period. At this rate, then, how does one conclude that the unborn cannot be considered to have life. The argument then becomes one reduced to capricious illogical technicalities.

Some would argue and the majority’s decision tends to agree that the unborn cannot survive on their own outside of the womb, and, therefore, no life is taken during an abortion procedure because no life could be said to have existed. Does the majority then suggest that the criterion to determine whether a life is to be legally protected depends upon one’s ability to live without the aid of others? And, therefore, does it matter whether this ability to live depends upon whether the accessibility to life-sustaining elements, e.g. food, liquid, warmth, etc., is derived inside or outside of the womb? Truly, a helpless baby denied these basic necessities would suffer the same fate regardless of whether he or she is inside or outside of the womb, and, more importantly, it is difficult to see why this determines whether one deserves legal protection.

Woe to Roe

Acknowledging then, that the determination when life truly begins is a difficult one, the majority used a “viability” test-the point at which a fetus can potentially live on its own. Using this view, however, leads to one conclusion: the majority’s decision determines that the above mentioned vital signs (heartbeat, etal.) are not determinative when deciding whether or not life exists. To the contrary, the criterion is the highly subjective test of viability. The majority is free to express this view, but it does seem odd that the determination of viability would trump all other means of establishing whether life exists, regardless of their reasonableness.

Also, however contrary a contention it may seem to strict constructionism of the Constitution, the majority’s emphasis on original intent is misplaced. Roe relies on the intention of the drafters of the 14th Amendment. Reasoning that since abortion was more widespread (as the majority claims) during the 19th Century, the 14th Amendment’s definition of a “person” does not apply to the unborn. This is one instance in which original intent cannot be reasonably applied. Assuming that the drafters excluded the unborn from the definition of a “person” based upon the relative unrestricted access to abortion at the time is circular at best and by no means compelling enough to support such an untenable decision. In short, it is clear that the abortion debate will continue to divide, however, the majority’s incoherent and unpersuasive decision in Roe v. Wade argues for a judicial re-examination of this case. Therefore, although there may never be any resolution concerning abortion, Roe itself will ultimately be defined by one word: Overruled.


Phil Angus

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