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Roe at Forty, part 2: The Court’s Two Unwarranted Stipulations Print E-mail
By Francis J. Beckwith   
Friday, 18 January 2013

Not only did Roe v. Wade’s majority opinion fail to address the question of whether the unborn human being is a moral subject  (as I showed earlier in part 1). Its reluctance to engage that question directly undermined two other arguments central to the Court’s holding:  (1) the argument from the claim that the fetus is protectable under the Fourteenth Amendment if it is in fact a person, and (2) the argument to state interest in prenatal life from fetal viability.

According Justice Harry Blackmun, author of the Court’s opinion, “If the suggestion of personhood [of the unborn] is established, the appellants case, of course, collapses, for the fetus right to life is then guaranteed specifically by the [Fourteenth Amendment]. That amendment asserts: “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.”

So, if the defendant in this case – the state of Texas – could have shown that the unborn child is a person under the Fourteenth Amendment, then there would be no right to abortion.

Now consider what Blackmun writes elsewhere in his opinion: “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 mans knowledge, is not in a position to speculate.”

As I pointed out in part 1, this claim actually seems to justify prohibitions on abortion, since the state may want to err on the side of innocent human life when experts disagree over whether the act in question results in unjustified homicide.

But setting that problem aside, let us juxtapose Blackmun’s appeal to disagreement with his claim that the fetus is protectable under the Fourteenth Amendment if it is in fact a person. It’s not clear how one gets a right to abortion from this.

For if, as Blackmun concedes, the right to abortion is contingent upon the non-personhood of the unborn child, his appeal to disagreement does not establish that premise. So, at best, it shows us that the right to abortion is as much subject to the disagreement of experts as is the unborn’s personhood, since if the latter is true, it defeats the right to abortion.

         Harry Blackmun

Consequently, far from establishing such a right, Blackmun’s logic establishes that the Court should be as agnostic about the right to abortion as it is about fetal personhood. So, the Court, implicitly conceding that its conclusion is unwarranted, simply stipulates the right to abortion.

In the second argument, the Court maintains that as the unborn child becomes more mature the state’s interest in prenatal life increases. For this reason, the Court concludes that at viability – when the fetus can live outside the womb –the state may (though it need not) prohibit abortion, except for in cases in which the life or health of the mother is in danger.

Because “health” is so broadly defined in Roe’s companion decision Doe v. Bolton (1973) that it includes psychological, familial, and emotional health, many have concluded, as I have, that this exception swallows the rule. Setting that problem aside, let’s look at how Blackmun justifies the viability standard.

Depending on a variety of factors, a fetus may be viable – even though it may require technological assistance – anywhere between 20 and 26 weeks after conception. Prior to viability, it requires the shelter and sustenance of its mother’s womb.

Justice Blackmun claims that this physical dependency carries with it moral significance, and thus a “[s]tate regulation protective of fetal life after viability. . .has both logical and biological justification.”  “This is so,” he writes, “because [at viability] the fetus presumably has the capability of meaningful life outside the mother’s womb.”

But this is a perfectly circular argument. Blackmun wants to distinguish between non-meaningful and meaningful life for the purpose of arguing that the state only has a compelling interest in protecting the latter when a woman’s right to abortion hangs in the balance. He selects viability, the time at which the fetus may live outside the womb, as the threshold moment when the unborn child is transformed from a non-meaningful to a meaningful life.

But Blackmun justifies viability as that moment by offering this reason: it is at viability that “the fetus presumably has the capability of meaningful life outside the mother’s womb.” But that’s his conclusion as well. So, again, like in the first argument we assessed, Blackmun merely stipulates his conclusion, and provides no actual warrant for it.

In part 1, I explained how the Court’s failure to address the question of the unborn’s moral status reveals Roe’s flimsy jurisprudential foundation. Here, I have shown how two arguments central to Roe’s holding are not based on anything more than unwarranted stipulation.

Thus, Roe is not only a tragedy because it failed to protect the most vulnerable among us, but also because it gave judicial legitimacy to a habit of mind that substitutes rational deliberation with unwarranted willfulness.

Francis J. Beckwith, Professor of Philosophy and Church-State Studies at Baylor University, is the author of Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University, 2007) as well as Politics for Christians: Statecraft is Soulcraft (InterVarsity Press, 2010)
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Comments (14)Add Comment
written by John Jakubczyk, January 18, 2013
This has been my argument since Roe. The failure of the Court to address the scientific reality that the entity in the womb is a human being renders the entire decision suspect. The 5th and 14th amendments both require due process and therefore the right to life of all persons, including those human beings in the womb is guaranteed by those two amendments. The fix was in on these cases. Brennan and Blackmun were looking to undermine the law in this area. They did it and we as a nation failed to stand up in outrage. 50,000,000 dead babies later, we still do not seem to get it. If we do not stop the killing, we will cease to exist as a people.
written by Michael Paterson-Seymour, January 18, 2013
Blackmun’s moral logic is an example of the kind of “probablism,” satirized by Pascal in Les Provinciales – an uncertain obligation is certainly not binding and there is no obligation to follow the safer or more probable opinion. From Letter 5:-

"And if an opinion be at once the less probable and the less safe, it is allowable to follow it," I asked, "even in the way of rejecting one which we believe to be more probable and safe?"

"Once more, I say yes," replied the monk. "Hear what Filiutius, that great Jesuit of Rome, says: 'It is allowable to follow the less probable opinion, even though it be the less safe one. That is the common judgement of modern authors.' Is not that quite clear?"
written by Manfred, January 18, 2013
Patrick Buchanan defined a nation as having borders, a common language (press 1 for English, 2 for Spanish?) and a common culture. We have none of the above. We have abortion in the U.S. because the Government and many (most?) of the citizens want it. Mr. Beckwith, all your arguments are forty years old. Griswold, Roe, Doe and Lawrence (which segued into same-sex "marriage") are all decisions of the Supreme Court. (The Court presently contains six "Catholics". The word God did not appear anywhere in the National Democratic Party's platform in 2012. "Religious" columns are becoming increasingly pointless as all they discuss are defeats. Neither political party can offer any hope as both are taking this Country to the same place. One is taking us more quickly than the other. Until we realize that Divine intervention is mandatory, we will just continue down the slippery slope.
written by Manfred, January 18, 2013
Post script: It just came to my attention that Gov. Andrew Cuomo of New York, who is identified as a Catholic, has just introduced legislation to have on-demand abortion up until birth become law in N.Y.
written by Rob, January 18, 2013
As the Pslamist reminds us "put not your trust in princes." The Supreme Court was seen as heroic during the Civil Rights movement. The Nazgul, our nine masters in black robes, dictate what the law is and what it is not. We have put our trust in princes for too long--and have put the GOP ahead of God. Witness how many pro-lifers and Catholics pine for Ronald Reagan and cheerfully assure us he was against abortion. Never mind that Reagan appointed anti-life Nazguls like O'Conner and Kennedy. Never mind that Reagan's best appointment was Scalia, a Nazgul of the Stephen Douglas school (if New York wants abortion and South Carolina doesn't it, so be it!). How many Catholics pined for the Republican presidential candidate who was not a Christian but assured us that he was pro-life--just as he assured Massachusetts voters in 1994 and 2002 that he was pro-abortion. There is little hope in politics. Build your families, build your communities, turn off the tv, educate your children. Those are the best ways to keep candles lit in these dark times.
written by Clement Williams, January 18, 2013
Just a couple of days ago, I read on the CNA website that the Alabama Supreme Court ruled that that unborn children are protected by the state’s chemical endangerment law. For this 40th. Anniversary of Roe v. Wade, this is encouraging indeed in dealing with the intellectual cowardice shown by Harry Blackmun those 40 years ago. I pray that this case ends up at the doors of the current SCOTUS soon!
written by Mack Hall, January 18, 2013
Agatha Christie's fictional detective, Poirot, says in one of the novels: "I have a bourgeois attitude toward murder - I disapprove of it."

Is it so difficult for the purportedly wise and learned to make such a clear statement of truth?
written by athanasius, January 18, 2013
The key here, as Manfred says, is that people want abortion and so they find a way to make it legal. It is the same with homosexual marriage, pornography, etc. Sex is physically pleasurable, and many people want it without the restrictions of love and babies. This is concupisence at work.

Our task is to make the majority of people not want it. Some people can be persuaded with theological arguments. Others will need to see that the evils that emerge from the brief pleasures of sex cause more damage than they are worth. Of course, this is easier said than done. But we have to do something.

Promoting the Theology of the Body in a way that common people will understand is a start. Exposing and educating on the social ills of abortion and the hook-up culture will also help. But we can't give up. Who would have thought in 1850 that slavery would have been outlawed in 15 years? Who thought in 1980 that the Soviet Union would collapse in 11 years? Remember, nothing is impossible with God.
written by Bain Wellington, January 18, 2013
Mr Beckwith claims that the reasoning in Roe-v-Wade is irrational in two important respects:- (1) the personhood argument, and (2) the fetal viability argument.

On my reading, he doesn't expound them very successfully, so it is no wonder they begin to look ragged. Page references are to 410 US.

(1) If the unborn is a "person" within the 14th amendment, then its right to life trumps the penumbral right to privacy of the pregnant woman. Justice Blackmun wrote (p.156):- "If this suggestion of personhood is established, the appellant's case, of course, collapses". It has nothing to do with fetal viability or with the debate over when life begins.

But the Court held that "person" does not cover the unborn (p.158). Blackmun continued:- "This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations."

Thus, it is only because the personhood argument failed that the Court examined whether and to what extent the state can assert a compelling interest in protecting the life of the unborn. In short, absent a right for the unborn under the 14th, the focus necessarily shifted from unborn-vs-mother to "compelling state interest"-v-"pregnant woman's interest".

Texas argued that the state has "a compelling interest in protecting that life from and after conception." (p.159). It is exactly here that Blackmun wrote:- "We need not resolve the difficult question of when life begins." Why not?

Well, because the onus was on the state to prove its compelling interest. Against the background of (i) extensive disagreement as to when life begins, and (ii) civil law's "reluctance to endorse any theory that life, as we recognize it, begins before live birth . . ." (p.161), the Court denied "that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake" (p.162). So, the Supreme Court agreed with the District Court (see p.156) that Texas failed to discharge its burden of proof.

(2) "Fetal viability" arose only after the radical arguments on both sides had been rejected, and it constitutes the Court's attempt to strike a balance between the state's compelling interest in protecting life and the right of a pregnant woman to terminate under the due process clause of the 14th – neither of which, it held, was absolute.
written by Francis J. Beckwith, January 19, 2013
Bain, I think you're missing the point, partly because you're reading Roe like a lawyer. That's not a bad thing by itself, of course. We have to understand and appreciate how courts reason within the confines of the legal tradition they find themselves. But that's not the only, or even the most fruitful, way to assess a court opinion. For if it were, one would miss the more interesting logical problems that should doom any argument, legal ones as well.

First, Blackmun offered three reasons why Texas could justify its belief that the fetus is a person under the 14th amendment: the text of the Constitution, the history of the statutes that prohibited abortion, and a non-legal philosophical/scientific cases ("the well-known facts of fetal development" quote is where you find that). I mention the first and second in part 1 of this series, and the third here. What is key to understanding the third is that Blackmun concedes a symmetrical relationship between the right to abortion and the degree to which the fetus is not a person. Thus, by claiming that the fetus "could be a person" (which could be established by Constitution, the statutes, or as a matter of fact), Blackmun necessarily implies that there "could be a right to abortion," though he nevertheless claims to have established a right to abortion. But "could be a right to abortion" is not a right to abortion. Remember, Blackmun claimed that the personhood argument failed for Constitution and statute but not for the third. For the third, he admits that "experts disagree," and says that the Court is not in a position to speculate. That is not a defeater. That is a concession.

Second, I understand why the Court offered "fetal viability" as a "compromise," and in fact explain why in the law review article of mine to which I link in part 1. I see the Court's reasoning as a sort of balancing of three interests: woman, fetus, and state. I say the same in a piece I did on cloning for Nevada Law Journal in 2002. In that piece I argue that one could forbid cloning based on fetal protection since there is no burden of pregnancy hanging in the balance.

In any event, the purpose of my drawing attention to the viability criterion is that the grounds by which Blackmun attempts to justify it is circular. That is, he offers no independent reason for offering it other than merely stipulating its definition as a justification. That may be good legal "reasoning." But it's not good reasoning.

Remember, explaining how justice reasoned, though certainly important in assessing a court case, is not the same as showing it his reasoning is good or plausible.

I encourage you to read the law review article to which I linked in part 1.

written by Bain Wellington, January 19, 2013

I accept the Church's teaching on abortion without reservation; I agree that the 40th anniversary of Roe-v-Wade ought not to pass unremarked; and I consider the Court had no business attempting to balance the state's "compelling interest in protecting life" against a pregnant woman's qualified rights under the 14th (as affirmed) to abort.

To my mind, Justice White's dissenting Opinion is more worth publicising than are the supposed illogicalities of the leading Opinion. As to that, I am just checking what Justice Blackmun wrote against what you say he wrote, and in important respects you misread him.

For example, you now say he "offered three reasons why Texas could justify its belief that the fetus is a person under the 14th amendment":- (a) the text of the Constitution, (b) the history of the anti-abortion statutes, and (c) a philosophical/scientific rationale.

Well, you radically misread Blackmun on (b) – not part of Texas' argument anyway – and (re the 14th) he ignored (c).


Texas had TWO distinct lines of defence for its abortion law: [1] personhood under the 14th and [2] the state's compelling interest in protecting life. Argument [1] was addressed in Section IX A of the Opinion; argument [2] in Section IX B.

Argument [1] fell because, no precedent supported such a reading of "person" in the 14th, and no use of "person" anywhere in the Constitution "indicates with any assurance" - Blackmun wrote - "that it has any possible prenatal application" (p.157). For good measure, he cited "our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today" (p.158).

Contrary to what you wrote, that "observation" refers NOT to the discussion of the legislative intent of 19thc. statutes in Section VII, but to something in Section VI, viz.:-

". . at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect" (p.140)

Although counsel for Texas did argue under [1] "the well-known facts of fetal development", Blackmun didn't discuss it (or the associated question when does life begin) anywhere in Section IX A, because, on his reading of the Constitution, the dichotomy was prenatal /postnatal.

Unless you grasp the structure of the argumentation, how can you condemn it for illogicality?

Kind regards
written by Bain Wellington, January 19, 2013
It is obvious, Francis, that we are talking past each other, and there is no benefit in that. You refer me to other writings of yours, but I am concerned only with what you have written in these two blog articles where you purport to describe Blackmun's argumentation and then attack it for illogicality.

Of course, Blackmun's reasoning as mediated by you may very well be illogical, but that isn't the real issue between us because I say you are misreading him and mis-characterising his argumentation. You aren't responding to these concerns of mine. Until we can agree on what he is saying, how can we discuss its logicality or illogicality?

May I add that of course I agree that a judge's "reasons" may be illogical and invalid, but I am sure you agree with me that legal reasoning does not march to the beat of a drum different from that to which any other kind of reasoning marches.

Kind regards
written by Roger Resler, January 23, 2013
Francis Beckwith wrote: "What is key to understanding the third is that Blackmun concedes a symmetrical relationship between the right to abortion and the degree to which the fetus is not a person."

"Degree" being the operative word. In theory, being a "person" or not being a person emerged as the pivotal moral factor in the abortion question during Roe v. Wade oral arguments, with even Sarah Weddington conceding that if the state could establish that a fetus is a "person" under the protection of the 14th Amendment, then she "would have a very difficult case." (Pro-choice) Justice Stewart suggested that such a finding would render Weddington's case "almost impossible" and Justice Blackmun wrote that Weddington's case "collapses" with the establishment of fetal personhood. Thus, the metaphysical concept of "personhood" became the critical element that living humans are supposed to fully possess before their lives can be protected by the Constitution. This is a clear case of stacking the deck in favor of the pro-choice agenda.

It is precisely the ambiguous nature of the concept of "personhood" that was exploited by pro-choice proponents in order to facilitate the larger pro-choice notion that the decision (as to whether or not abortion is morally permissible) should be left up to each individual woman.

Ironically, with specific regard to the law, Justice Blackmun never conclusively suggested that the unborn are not persons, but rather that, according to the law, they had allegedly never been regarded as "persons in the whole sense." The implication being that even if they were in some sense "partial persons" they were still not "whole" persons. This, of course, logically raises the question of how much "personhood" is required before one's pre-existing life can be protected by the law; a question that can only be answered subjectively since personhood cannot be measured.

The debate over fetal personhood was therefore an ad hoc response specifically designed to facilitate the desire for abortion on request; a desire that had grown out of a larger desire to avoid moral responsibility to one's own offspring. We would not be debating fetal "personhood" 40 years after Roe v. Wade, had there not previously existed a desire for legalized abortion on request.
written by Roger Resler, January 27, 2013
Bain Wellington wrote:

"To my mind, Justice White's dissenting Opinion is more worth publicising than are the supposed illogicalities of the leading Opinion."

Justice White’s opinion is nearly as critical of the majority opinion as is Francis Beckwith. A few of White’s key criticisms include:

“I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”
“As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

“The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. 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.”

Finding “nothing in the language or history of the Constitution to support the Court’s judgment” is a serious indictment; as is creating “a new constitutional right” with “scarcely any reason or authority for its action.”

While the “illogicalities of the leading opinion” might make sense on a structural level in terms of responding in context to specific arguments that were raised either during oral arguments or in the briefs, as Francis Beckwith points out, that in itself does not make for a sound argument. Lawyers can (and do) debate whether Blackmun’s legal logistics where acceptable but his logical reasoning (to say nothing about moral considerations) is sorely lacking.

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