1973 brought a lot of things to America. That year we pulled out of Vietnam, leaving our South Vietnamese allies to face the Russian-backed North alone. Richard Nixon assured the country that he was not a crook. The World Trade Center became the tallest building in the world. The nerdier among us may mark it as the year Skylab, our first space station, was launched. Nothing that happened that year, however, had a greater impact than the Supreme Court's ruling in Roe v. Wade on January 22 that abortion was a constitutionally protected right. With that ruling state laws across the country banning abortion were struck down, fundamentally changing the nation.
The Supreme Court's decision wasn't the first salvo on the topic of abortion. Efforts to relax state laws prohibiting abortion to include exceptions for rape, incest, the life of the mother, and other extreme cases through legislative means had been going on for years. No one, though, had argued that abortion was a constitutionally protected right. Justice Blackmun, together with his liberal colleagues, argued that a right to privacy existed in the Constitution, based either in the fourteenth or the ninth amendment, and that that right to privacy justified aborting unborn children up until the child would be viable if delivered. The decision led to more than fifty-two million abortions in the subsequent years—for comparison, total American deaths in World War II only come out to about one million.
The decision in Roe v. Wade is troubling for a number of issues, some of them not even related to abortion. First, the court found a right to privacy in the Constitution not recognized by any scholar of that document. Certainly the Supreme Court, beginning in 1923, had actively reinterpreted the Constitution to extend the right to liberty found in the fourteenth amendment into a general right to privacy, but the 1973 decision expanded that effort massively. Chief Justice Douglas in Griswold v. Connecticut had found a right to privacy in the “emanations” and “penumbras” of other rights actually found in the Constitution. The district court that ruled in Roe v. Wade prior to the Supreme Court found that the right to privacy was derived from the ninth amendment. Justice Blackmun, in writing his opinion in Roe v. Wade expanded that right to privacy drastically and gave it a home in the fourteenth amendment.
Each possible source of a constitutional right to privacy, however, lacks substance. The argument from “emanations” and “penumbras” is a fairly obvious attempt to read something into the Constitution the founders' did not intend. The argument from the ninth amendment is also badly off the mark. The Constitution is a limit on national, not state, government. The fact that the Constitution does not “deny or disparage” rights not specifically protected does not in any way mean that the states cannot do so. If one were to make the argument that the ninth amendment limits the states no state could pass any law that limits the rights of any individual in any way, since all rights would be protected by the ninth amendment. This is obviously absurd. The argument from the fourteenth amendment is also flawed. Although the fourteenth amendment guarantees that no state can deprive any citizen of “life, liberty, or property without due process of law,” the wording clearly intends “life, liberty, or property” to mean the three forms of punishment possible: death, imprisonment, or fine. Once again, by making the argument that liberty is intended to apply to all forms of liberty one reaches an entirely untenable conclusion.
A greater flaw in the decision's reasoning lies in the age when the unborn child begins to be partially protected. According to the decision states cannot limit abortion in any way except to protect the life of the mother until the baby would be viable if delivered. The obvious implication is that life begins at viability. This lacks even basic common sense. While the decision, based on the ability of the medical community at that time, placed the line when viability began at twenty-eight weeks today fifty to seventy percent of babies born at twenty-four weeks survive. Even at twenty-three weeks thirty-five percent survive. Basing one's definition of what life should be protected on the viability of the child outside the womb thus places life entirely at the hands of technology. Fifty years ago keeping a child born at twenty-three weeks gestation alive would have been unimaginable. Today, although difficult, it is possible. One can imagine that similar advances will occur in the next fifty years, meaning that children who, according to Roe v. Wade, could not be protected by state law now would present little problem to the medical professionals of that time. To emphasis the absurdity of viability as a measure of the beginning of protected life a thought experiment could be useful. Imagine that a device capable of maintaining fetal viability beginning at fifteen weeks gestation was invented. The inventor, being a particularly greedy fellow, refused to reveal the plans or how the complex machine could be used before he was paid. Without a demonstration no company would pay for the eccentric genius's machine, so he died without revealing the secret of his invention. Now, are the unborn children at fifteen, sixteen, seventeen, etc. weeks gestation alive in such a way that they should be protected? Should they be allowed to be protected by state law? After all, the equipment does exist to keep them alive outside the womb. On the other hand, no one is capable of actually using the equipment, so perhaps they shouldn't be protected. One could go on and imagine any number of situations in which fetal viability would be completely inadequate to mark the beginning of life.
This example, along with other objections to fetal viability as a measure of the beginning of protected life, merely highlights the problem: fetal viability has absolutely no relation to life. Arguing that an unborn child is not alive because it would not be viable outside the womb is exactly equivalent to arguing that you are not alive because you would not be viable if a maniac slammed an icepick through your head. One's future or potential state cannot, by definition, affect one's present state.
A simple rule of thumb is that if something is not considered to be characteristic of human life in adult humans it should not be considered to be the single mark of life in the unborn. That means that, since future and potential viability are not considered to be marks of humanity in the population at large, they should not be considered such in the unborn. Further, no one seriously believes that the ability to feel pain, cognizance, appearance, or the size of one's brain or other organs marks human life in the population at large, so it should not be the mark of life in the unborn. In reality, the one physical trait that is universally considered to mark a human being is the presence of a unique set of DNA. One cannot point to any other stage in the development of an unborn human when anything intrinsic to the nature of the child changes dramatically enough to warrant being considered to be the beginning of life.
Given that life logically must begin at conception, when all the information necessary for life is present, society, through government, has not only the right but also the duty to protect that right. First and foremost among government's tasks is the duty to protect life and implicit in that duty is the necessity of first defining life by the best means possible. Thus abortion is not, as many would have us believe, a private, personal choice beyond the reach of government intervention, it is, as we have seen, an attack on the most defenseless among us and as such is well within the purview of government. Even liberal Justice Blackmun admitted that if the unborn baby was a person it would “of course” be protected by the fourteenth amendment. This means that the unborn are protected by the fourteenth amendment's guarantee of equal protection of the laws, and Congress is authorized to pass appropriate legislation to enforce that protection. It is past high time that Congress and the American people shake off the Supreme Court's deadly foolishness by taking appropriate action to protect the rights of every person within the United States, born or unborn.
The decision in Roe v. Wade is troubling for a number of issues, some of them not even related to abortion. First, the court found a right to privacy in the Constitution not recognized by any scholar of that document. Certainly the Supreme Court, beginning in 1923, had actively reinterpreted the Constitution to extend the right to liberty found in the fourteenth amendment into a general right to privacy, but the 1973 decision expanded that effort massively. Chief Justice Douglas in Griswold v. Connecticut had found a right to privacy in the “emanations” and “penumbras” of other rights actually found in the Constitution. The district court that ruled in Roe v. Wade prior to the Supreme Court found that the right to privacy was derived from the ninth amendment. Justice Blackmun, in writing his opinion in Roe v. Wade expanded that right to privacy drastically and gave it a home in the fourteenth amendment.
Each possible source of a constitutional right to privacy, however, lacks substance. The argument from “emanations” and “penumbras” is a fairly obvious attempt to read something into the Constitution the founders' did not intend. The argument from the ninth amendment is also badly off the mark. The Constitution is a limit on national, not state, government. The fact that the Constitution does not “deny or disparage” rights not specifically protected does not in any way mean that the states cannot do so. If one were to make the argument that the ninth amendment limits the states no state could pass any law that limits the rights of any individual in any way, since all rights would be protected by the ninth amendment. This is obviously absurd. The argument from the fourteenth amendment is also flawed. Although the fourteenth amendment guarantees that no state can deprive any citizen of “life, liberty, or property without due process of law,” the wording clearly intends “life, liberty, or property” to mean the three forms of punishment possible: death, imprisonment, or fine. Once again, by making the argument that liberty is intended to apply to all forms of liberty one reaches an entirely untenable conclusion.
A greater flaw in the decision's reasoning lies in the age when the unborn child begins to be partially protected. According to the decision states cannot limit abortion in any way except to protect the life of the mother until the baby would be viable if delivered. The obvious implication is that life begins at viability. This lacks even basic common sense. While the decision, based on the ability of the medical community at that time, placed the line when viability began at twenty-eight weeks today fifty to seventy percent of babies born at twenty-four weeks survive. Even at twenty-three weeks thirty-five percent survive. Basing one's definition of what life should be protected on the viability of the child outside the womb thus places life entirely at the hands of technology. Fifty years ago keeping a child born at twenty-three weeks gestation alive would have been unimaginable. Today, although difficult, it is possible. One can imagine that similar advances will occur in the next fifty years, meaning that children who, according to Roe v. Wade, could not be protected by state law now would present little problem to the medical professionals of that time. To emphasis the absurdity of viability as a measure of the beginning of protected life a thought experiment could be useful. Imagine that a device capable of maintaining fetal viability beginning at fifteen weeks gestation was invented. The inventor, being a particularly greedy fellow, refused to reveal the plans or how the complex machine could be used before he was paid. Without a demonstration no company would pay for the eccentric genius's machine, so he died without revealing the secret of his invention. Now, are the unborn children at fifteen, sixteen, seventeen, etc. weeks gestation alive in such a way that they should be protected? Should they be allowed to be protected by state law? After all, the equipment does exist to keep them alive outside the womb. On the other hand, no one is capable of actually using the equipment, so perhaps they shouldn't be protected. One could go on and imagine any number of situations in which fetal viability would be completely inadequate to mark the beginning of life.
This example, along with other objections to fetal viability as a measure of the beginning of protected life, merely highlights the problem: fetal viability has absolutely no relation to life. Arguing that an unborn child is not alive because it would not be viable outside the womb is exactly equivalent to arguing that you are not alive because you would not be viable if a maniac slammed an icepick through your head. One's future or potential state cannot, by definition, affect one's present state.
A simple rule of thumb is that if something is not considered to be characteristic of human life in adult humans it should not be considered to be the single mark of life in the unborn. That means that, since future and potential viability are not considered to be marks of humanity in the population at large, they should not be considered such in the unborn. Further, no one seriously believes that the ability to feel pain, cognizance, appearance, or the size of one's brain or other organs marks human life in the population at large, so it should not be the mark of life in the unborn. In reality, the one physical trait that is universally considered to mark a human being is the presence of a unique set of DNA. One cannot point to any other stage in the development of an unborn human when anything intrinsic to the nature of the child changes dramatically enough to warrant being considered to be the beginning of life.
Given that life logically must begin at conception, when all the information necessary for life is present, society, through government, has not only the right but also the duty to protect that right. First and foremost among government's tasks is the duty to protect life and implicit in that duty is the necessity of first defining life by the best means possible. Thus abortion is not, as many would have us believe, a private, personal choice beyond the reach of government intervention, it is, as we have seen, an attack on the most defenseless among us and as such is well within the purview of government. Even liberal Justice Blackmun admitted that if the unborn baby was a person it would “of course” be protected by the fourteenth amendment. This means that the unborn are protected by the fourteenth amendment's guarantee of equal protection of the laws, and Congress is authorized to pass appropriate legislation to enforce that protection. It is past high time that Congress and the American people shake off the Supreme Court's deadly foolishness by taking appropriate action to protect the rights of every person within the United States, born or unborn.
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So well-said. Some may say that we are biased because of our Christian view points, but are they not biased because of their world view, as well?? Life is so precious, so fragile, and it is simply horrendous that we often treat it as something to be thrown away like trash. Really enjoyed this! =)
Allison R. Bunke said...
August 20, 2012 at 10:28 AM