Later this month on January 22, many will commemorate, in sadness, the fortieth anniversary of Roe v. Wade, the Supreme Court decision that declared virtually all restrictions on abortion unconstitutional.
Although prolifers reject this opinion because of its exclusion of the unborn from the class of protectable human beings, most prolifers, like most Americans, rarely understand why many scholars, including abortion-choice supporters, consider Roe to be a badly reasoned opinion. (For an extensive analysis, see my 2006 Liberty University Law Review article).
The 1965 case of Griswold v. Connecticut set the stage. In that decision, the Supreme Court discovered a right to contraceptive use by married couples (later by the unmarried in Eisenstadt v. Baird ), based on the “right of privacy.” Although that right is not found in the Constitution, the Court opined, in a plurality opinion, that it could be inferred from the “penumbras and emanations” of several amendments in the Bill of Rights.
For supporters of abortion choice, the application of this was obvious: because abortion is an exercise of the reproductive rights discovered in Griswold, the right of privacy must be extended to include a right to abortion. However, it was not that simple. For, unlike contraceptive use, abortion required the destruction of what appeared to be a third party, the unborn child.
Because the several states had banned abortions for quite some time, with only a few passing more permissive laws in the decade preceding Roe, it seemed to a citizen of ordinary wit that all the state governments within the United States had at some point in their histories decided that the unborn child deserved the protections of the law.
But if that is the case, it would seem nearly impossible for the Court to take the reasoning of Griswold, that had been applied to a self-regarding act engaged in by consenting adults, and extend it to include an act that results in the death of an innocent third party.
Justice Harry Blackmun, author of Roe’s majority opinion, found a way around this apparent roadblock. He offered three reasons for rejecting the unborn child’s presence in this dispute:
(1) The Constitution, though it employs the word “person” in several places, does not define what a person is as such;(2) Because the state abortion bans were not intended to protect the unborn child, but rather to protect the pregnant woman from dangerous operations, they no longer serve a state purpose, since abortions are now relatively safe; and(3) Because experts, such as theologians, physicians, and philosophers, disagree about when life begins, the Court will not offer any opinion on the matter.
SCOTUS in ’73
Although the first reason is indeed true, it proves too much. For it would mean that unless the Constitution explicitly defines a word, we cannot know what the word means. The principle on which this reasoning relies – that the Constitution must include in its text all that is necessary to interpret it – would mean that the Constitution is literally incomprehensible, since it also does not include the rules of proper eighteenth century American English grammar.
Blackmun’s second reason is just flat out wrong. His analysis of state abortion laws was based almost exclusively on two law review articles written by Cyril Means, an attorney for the National Association for the Repeal of Abortion Laws (NARAL). These articles, along with Blackmun’s use of them, have come under trenchant and withering criticisms in an astonishingly large number of academic periodicals in the past four decades.
James S. Witherspoon wrote what is perhaps the most thorough scholarly article that addresses Blackmun’s account of these state laws. After an extensive analysis of the nineteenth-century passage of these statutes, their legislative histories, and the political climate in which they were passed, he concludes: “[T]hat the primary purpose of the nineteenth-century antiabortion statutes was to protect the lives of unborn children is clearly shown by the terms of the statutes themselves.” (The best scholarly book on this subject is by Villanova law professor, Joseph W. Dellapenna: Dispelling the Myths of Abortion History).
Blackmun’s third reason confuses the scientific question of when an individual human life comes into being with the philosophical question of when that individual human life becomes a moral subject. For no one seriously denies that, as a matter of scientific fact, an individual human life either begins at conception (which is the majority position) or begins at least within two weeks after conception, long before a pregnant woman typically gets an abortion.
There is indeed disagreement on the philosophical question. Some believe, as prolifers do, that a human being is a moral subject as long as he is alive, even before he exhibits the personal powers that come with maturity. Others believe that it is those personal powers – the immediate ability to communicate, possess self-consciousness, to have a life plan, etc. – that impart moral worth to a human being.
As I have noted on this page, as well as elsewhere, this view confuses being a person with functioning as a person. Regardless, wouldn’t Blackmun’s appeal to expert disagreement justify a state interest in prohibiting 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?
Roe v. Wade, despite its popularity in some circles, is based on a flimsy, to put it mildly, jurisprudential foundation.