It's Time to Reject Roe v. Wade as Invincible Precedent     11/22/2005
By Jan LaRue, Chief Counsel

Constitutional law should not rest on mythical linchpins.

A U.S. senator appeared on a news show early this month to discuss his meeting with Supreme Court nominee Judge Samuel Alito. The topic naturally turned to abortion. The senator said his religious belief is that human life begins at conception. He expressed his hope that someday science will actually tell us when human life begins.

The senator is pro-life, yet he missed a great opportunity to speak the truth. We know when life begins but the tragedy is that our abortion laws are based on one of the greatest suppressions of truth in Supreme Court history, otherwise known as Roe v. Wade.

The lionization of Roe as untouchable precedent, which has become the definitive litmus test for Supreme Court nominees, rests on the fallacy that we do not know when life begins. The myth stems from seven Supreme Court justices who decided that it was unnecessary to know when life begins in order to decide if it may be ended. After implying that judges aren't smart enough to even guess when life begins, the seven decided to decide anyway.

The majority's predetermined outcome exposes an activist court willing to adopt a ridiculous rationale in order to create a new "constitutional right."

In his preparation to write the majority opinion in Roe v. Wade, the late Supreme Court Justice Harry Blackmun spent an entire summer studying the international history of abortion law and reading textbooks in the Mayo Clinic medical library.

Blackmun identified the salient issue that stood in the way of Roe prevailing on the theory that abortion is a constitutional right. He wrote, "If this suggestion of personhood (fetus) is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed by the Amendment."¹

In order to deny the unborn status as "persons" protected by the 14th Amendment, the Court first had to dehumanize them. The majority did so by pretending that no one could agree on when human life begins.

Blackmun penned a statement that reads more like that of a high school student who flunked a biology exam than a jurist looking for truth:

We 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.²

One of many pro-fetal-life sources Blackmun cited and dismissed was the American Medical Association's (AMA's) Committee on Criminal Abortion Report of 1859, which referred to "the independent and actual existence of the child before birth, as a living being." The AMA adopted resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws. In 1970, an AMA Committee noted "polarization of the medical profession on this controversial issue." It was "felt to be influenced by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available."³

And it gets worse. The unborn, Blackmun decreed with a straight face, are merely "potential life" until "viability," the time when "the fetus becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid."⁴ Not subject to cross-examination, Blackmun wasn't made to explain how "potential life," i.e., non-life, is capable of development.

Blackmun's inconsistency could hardly be more obvious when compared to this statement about the "developing young":

[T]he pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. The situation therefore is inherently different from marital intimacy or bedroom possession of obscene material or marriage, or procreation, or education, with which Eisenstaub and Griswold, Stanley, Loving, Skinner and Pierce and Meyer were respectively concerned.⁵

You'd think that Blackmun, former general counsel for the Mayo Clinic, would have found persuasive Dr. Hymie Gordon, the Mayo Clinic's chief geneticist, who wrote:

From the moment of fertilization, when the deoxyribose nucleic acids from the spermatozoon and the ovum come together to form the zygote, the pattern of the individual's constitutional development is irrevocably determined, his future health, his future intellectual potential, even his future criminal proclivities are all dependent on the sequence of the purine and pryrimidine bases in the original set of DNA molecules of the unicellular individual. True, environmental influences both during the intra-uterine period and after birth modify the individual's constitution and continue to do so right until his death, but it is at the moment of conception that the individual's capacity to these exogenous influences is established. Even at that early stage, the complexity of the living cell is so great that it is beyond our comprehension. It is a privilege to be allowed to protect and nurture it.⁶

Blackmun also "missed" Louis Pasteur's work on biogenesis:

The superstition that life arose from nonliving matter was scientifically disproved a long time ago by Louis Pasteur and others. It became a principle of science, we read in the Oxford Dictionary of Biology under biogenesis, "that a living organism can only arise from other living organisms similar to itself (i.e., that like gives rise to like) and can never originate from nonliving material" (Oxford University Press, 2000).⁷

Put simply, rotten meat doesn't produce the maggots crawling on it nor are mice produced by the pile of rags on which they crawl. All life comes from pre-existing life. There is no period of nonlife. Biological growth-metabolism, reproduction and reaction to stimuli-proves the unborn are alive at conception. They are human life because each being reproduces after its own kind. It is nonsensical to conclude that two human beings produce a being that later becomes a human being.

Walker Percy, author and medical doctor, rebuked misguided jurists of the 20th century who suppress scientific facts. He wrote:

The onset of individual life is not a dogma of the church but a fact of science. How much more convenient if we lived in the thirteenth century, when no one knew anything about micro-biology and arguments about the onset of life were legitimate. … Nowadays it is not some misguided ecclesiastics who are trying to suppress an embarrassing scientific fact. It is the secular juridicial (sic)-journalistic establishment.⁸

Why did a 20th century jurist with access to a world-class medical library suppress the truth about the onset of human life available in a high-school biology textbook? There is no rational explanation other than outcome-based jurisprudence, where absurdities that pass for scholarship and constitutional law replace truth and sound reasoning.

With the first linchpin pulled out from protection for the unborn, Blackmun proceeded to pull the second. He concluded that no case had been cited that included the fetus within the language of the 14th Amendment. The fact that no case existed that included a right to abortion under any provision of the Constitution didn't stop Blackmun from creating the one that did.

The point was not lost on then-Justice William Rehnquist, who wrote in his dissent:

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. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 20, §§ 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time."⁹
…
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.¹⁰

Justice Byron White concluded the same in his dissenting opinion in Roe's companion case, Doe v. Bolton:

In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.¹¹

Blackmun argued that the reference to "person" in the 14th Amendment means "citizens" who are born or naturalized in the United States. "All this together with our observation … persuades us that the word person does not include the unborn."¹² The fact that aliens, who are neither born in the U.S. nor naturalized, are persons protected by the Amendment was of no moment to Blackmun.

Blackmun arbitrarily refused to include the unborn in the doctrine of "personhood," even though "person" in the 14th Amendment includes inanimate entities such as corporations and ships. Blackmun's conclusion went further than the 14th Amendment: "In short, the unborn have never been recognized in the law as persons in the whole sense."¹³

It strains reason to understand how Blackmun could reach such a conclusion about the unborn after first quoting the Texas abortion statute he was about to declare unconstitutional: "Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years."¹⁴

Blackmun and six other highly educated men agreed that it didn't matter whether the unborn are human life in order to decide whether they can be terminated without due process. It's no wonder that Justice Byron White called it an act of "raw judicial power."

It is wrong, however, to state that Roe actually holds that the unborn are not human beings. Furthermore, consider the following examples of legal protection for the unborn, both pre- and post-Roe:

The unborn child in the path of an automobile is as much a person in the street as the mother. The criminal law regards it as a separate entity and the law of property considers it in being for all purposes which are to its benefit, such as, taking by will or descent. He may maintain an action for prenatal injuries and if he dies of such injuries, an action will lie for his wrongful death.¹⁵

California Penal Code § 270, "Failure to provide for child," was amended in 1923 to add the following: "A child conceived, but not yet born, is to be deemed an existing person in so far as this section is concerned." California Civil Code § 373.5 provides for the appointment of a guardian ad litem for an unborn child.

While fetal homicide statutes, such as California Penal Code § 187, imply a fetus is distinct from a "human being," it's a distinction without a difference for the convicted murderer who is subject to execution for murdering a fetus. California has had a "fetal homicide" statute since 1970, which was on the books when Blackmun was writing the majority opinion in Roe.

Legal fictions that attempt to distinguish between a fetus and a human being, and yet impose the same penalty for murdering either, expose a flawed and dangerous policy in which the unborn's right to life depends on who wants it terminated-the mother or another.

As for the good senator who is hoping that science will one day answer the question of when life begins, he should also consider the testimony of Dr. Jerome Lejeune, a world-renowned expert in human genetics:

When the first cell exists, all the "tricks of the trade" to build itself into an individual already exist. Shortly after fertilization at the three-cell stage, a ... tiny human being ... exists. When the ovum is fertilized by the sperm, the result is ... the most specialized cell under the sun … ; specialized from the point of view that no other cell will ever have the same instructions in the life of the individual being created. No scientist has ever offered the opinion that an embryo is property. As soon as he has been conceived, a man is a man. New findings recited [Jeffrey's DNA] definitely prove differentiation and that from the very beginning there exists an embryo.¹⁶

Supreme Court Justice Ruth Bader Ginsburg, a supporter of abortion, has acknowledged the difficulty of justifying the judicial activism of Roe:

Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.¹⁷

Another Supreme shame that is beyond justification created a "constitutional right" to own human beings. Dred Scott v. Sandford rested on a dreadful lie that took a war to end it. Those who insist that the national disgrace of Roe v. Wade must remain inviolate because it is precedent should be made to defend Dred Scott on the same principle.

And what does it say about a nation that protects the nests and eggs of endangered species to the same degree that it protects them as adults but fails to protect the life of unborn humans?

Whoever, except in compliance with rules and regulations promulgated by authority of law, hunts, traps, captures, willfully disturbs or kills any bird, fish, or wild animal of any kind whatever, or takes or destroys the eggs or nest of any such bird or fish, on any lands or waters which are set apart or reserved as sanctuaries, refuges or breeding grounds for such birds, fish, or animals under any law of the United States or willfully injures, molests, or destroys any property of the United States on any such lands or waters, shall be fined under this title or imprisoned not more than six months, or both.¹⁸

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