Spitzer on Roe v. Wade Print
By James V. Schall, S. J.   
Tuesday, 15 November 2011

Robert Spitzer, S. J.’s new book, Ten Universal Principles, deserves special attention. Spitzer takes up arguments that were used in Roe v. Wade by the Supreme Court to justify its position that an unborn child was not a “person” under the Constitution and the Fourteenth Amendment. He is not the first to articulate the flaws in the Court’s arguments. Hadley Arkes, Robert George, Leon Kass, Gerald Bradley, Charles Rice, among others, have addressed this issue.

But Spitzer uses his own philosophical and scientific acumen to clarity the reasoning of the Court’s own arguments. Similar erroneous decisions have been made by executives, legislatures, and courts of other nations and international organizations. Spitzer is concerned with the “intelligence” of the justices. If their justifications were valid, the justices could hold their heads high to stand on principles of reason. If not, they violate their primary duty as justices.

All justices know the similarity between Roe v. Wade and the Dred Scott Decision. Spitzer shows the difference between these equally erroneous decisions. The Court, in the Dred Scott Case, used positive law (a provision in the Constitution) to justify the lack of full humanity to the slaves. The Court restricted their natural liberty. The Roe v. Wade decision used lack of Court precedent to justify the legal permission to kill real human beings by finding no mention of the word “person” in previous legal cases.

To the question of whether “what is born of human parents is human,” something that seems quite obvious, the Court interposed the presumed disagreement of theological, scientific, and medical experts on when human life begins. Everyone involved in the case recognized that if human life began at conception, as the Texas court pointed out, no case could be made to overthrow the Texas law protecting the unborn.

The fact is, as Spitzer points out, from Blackstone and previous decisions of State Courts, legal precedent existed that the human fetus at all its stages was a human person. The Court simply ignored this background.

The Court’s effort to make a distinction between a “human being” and a “person” was spurious from the beginning. Spitzer’s analysis of the legal, linguistic, and metaphysical use of the word “person” in every instance identifies it with a human being protected both by natural and constitutional law. Why the Court could not find the word “person” in previous Court decisions was simple. The issue never came up before. It would be, Spitzer suggests, like saying that because the old maps did not show the existence of the American continent, therefore, it did not exist.

This background also leads to the issue of the scientific status of the human fetus. No longer is there any doubt that the fertilized human zygote from its beginning is an independent human life separate from the mother. Spitzer cites the work of Jerome Lejeune on the DNA of the human fetus. This work became known a few years after the decision, but the Court has not recognized its force. The Court equivalently said that, if it is in doubt about whether a thing is human, we can assume that it is not. This is a principle directly contrary to reason. If in doubt about a thing’s humanity, we do not act until we find out.

A written Constitution and legislation authorized under it do not “create” everything under which a people lives. A Constitution, at an initial level, articulates, but does not create, what human beings are responsible to do and hold. The protection of life, liberty, truth, and property is already a duty before any constitution exists clearly to articulate their scope. Otherwise, the framers would be free to construct whatever they wished, as Hobbes implied in his initial understanding of “natural rights.” 

Spitzer asks a penetrating question. Why did the justices violate basic rules of reason and evidence in this case?

It seems that they did not want to stop at anything preventing them from reaching their predetermined conclusions. They wanted these conclusions so much that they were willing not only to jeopardize millions of human beings and risk the undermining of all prescriptive laws in the legal system, but to risk centuries of criticism when their reasoning was exposed as fallacious and in violation of their own rules of evidence.

The only honorable thing such a Court could do, Spitzer remarks, is to reverse its decision.

Such a choice would be the necessary step to restore confidence that the Court is not ruled by its own arbitrary will but by a criterion of reason which it did not make itself but to which, in duty and honor, it is bound. Roe v. Wade is the small initial error, to recall Aristotle, that leads, in the end, to huge errors.


James V. Schall, S.J., a professor at Georgetown University, is one of the most prolific Catholic writers in America. His most recent book is The Mind That Is Catholic.

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