Roe Examined Legally and Morally

Tuesday, July 13, 2004



How Roe v. Wade Was Legally Right Even if it Was Morally Wrong

I know some readers are probably a bit tired of this topic, but others seem to be engaged with the upcoming elections between John Kerry and George Bush. To pique some curiosity, let me say that I plan to demonstrate that Kerry may be more likely to back a Right to Life Amendment than Bush as I show why Roe v. Wade was legally right.

I have posted on other sites and on this site an argument that I believe that the reasoning used in Roe v. Wade is theologically and morally incorrect, but legally sound and legally unassailable without an Amendment to the Constitution.

I take a lot of heat for this position from fellow pro-lifers for making such a statement, so I wish to attempt to clarify exactly why I say this.

Let me begin my clarification with a few very important caveats.

First, admitting that Roe is a correct interpretation of the current Constitution or that I understand the reasoning of the Court does not mean that I believe that abortion should be legal or that we can do nothing to change the law.

Second, I am not a lawyer by trade. The opinion I am expressing is my own research on the issue, but if a lawyer comes along and presents a good legal counter-argument, I would certainly listen to what is being said.

Third, to drive home the first point I made, I am pro-life. By saying this, I mean that I would wholeheartedly support an Amendment to the Constitution that extended the right to life to the unborn. I would seek that every abortion that does not meet the strictest interpretation of the principle of double effect should be criminalized. (I would seek to punish doctors performing abortions, rather than the women procuring abortions, who need to be shown clemency and mercy). I want it to be perfectly clear that I am not arguing from a pro-choice bias, because I am not pro-choice.

The principle of double effect applied to abortion means that a surgical procedure intended to address a threat to the life of both mother and unborn child can be performed if an unintentional consequence of this procedure is the termination of the life of the unborn child alone. An example would be the removal of a uterine tumor threatening the life of both mother and unborn child where the tumor cannot removed without also terminating the pregnancy.

In my mind, a Right to Life Amendment would clearly define as persons under the law any living organism that possesses the double helix DNA structure common to the species homo sapien, and the right to life of such an organism would extend from conception until natural death. Defining personhood is essential because until we come up with a good definition, many people could be at risk of exclusion from the basic right to life.

I would consider this issue a "dominant issue" in voting, and would gladly support a candidate who would propose or support such an Amendment, or something similar.

I would also see such legislation as naturally prohibitive of certain IVF procedures that destroy human embryos as well as stem cell research or human cloning projects that do the same. Such legislation would protect the elderly or terminally ill, as well, from euthanasia and so-called mercy killing or assisted suicide. Furthermore, such legislation would make the use of capital punishment unconstitutional. I support a consistent ethic of life!

I fault both Bush and Kerry because neither has offered public support for such an Amendment, and I am convinced that such an Amendment is the only vehicle that would truly stop abortion in the United States. Until such an Amendment is passed, I believe that even many incremental measures, such as cutting federal spending on abortion, are at constant risk of being overturned by even the most conservative Court.

With my own bias clear, let me clarify further that I am arguing against a prevalent opinion of many fellow pro-lifers that Roe v. Wade was an abuse of power by the Supreme Court and that the decision was legally wrong, rather than simply morally wrong.

There exists in the pro-life movement a widespread misconception that the Court forced a misinterpretation of the Constitution on the American people by "inventing" its own definitions of "personhood".

What the Court did was actually the exact opposite. The Court refused to define what personhood means beyond the definition of personhood offered in the actual literal text of the Constitution!

This is why we are in a situation that even with a Supreme Court today that is heavily stacked with Republican appointees who were specifically chosen in most cases because they may be "pro-life", the Court continues to disappoint pro-lifers.

Why do Sandra Day O'Connor or David Souter and other Justices disappoint us?

It's not because they waffle on the issue. It's because they understand the law and the current law simply does not permit protection to the unborn.

This is why I continually argue that the pro-life movement is wasting effort by trying to reconfigure the Court.

Though abortion is immoral in my mind, we must confront the fact that the Constitution alone simply cannot be interpreted in such a way that the unborn deserve protection under the law. Our convictions come from sources outside of the Constitution, and until we change the Constitution, we are fighting a losing battle on the abortion front.

Here is the actual text of the Roe v. Wade decision. The decision heavily references Amendment XIV. The Amendment follows:

Amendment XIV: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
In deciding the case before them, the Court Justices recognized that the rights of citizens clearly begin at birth or naturalization according to the Constitution. The question was whether the portion of the Amendment referring to the rights of "persons" referred to the unborn. The Court turned to the internal references to the word "person" itself for clarification (exuse some of the formatting of Court references, and go to the original if you want) :
The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, �§ 2, cl. 2, and �§ 3, cl. 3; in the Apportionment Clause, Art. I, �§ 2, cl. 3; (We are not aware that in the taking of any census under this clause, a fetus has ever been counted.) in the Migration and Importation provision, Art. I, �§ 9, cl. 1; in the Emolument Clause, Art. I, �§ 9, cl. 8; in the Electors provisions, Art. II, �§ 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, �§ 1, cl. 5; in the Extradition provisions, Art. IV, �§ 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in �§�§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.
In my mind, this is a damning argument to anyone who believes that the Constitution can extend the rights of personhood to the unborn. The Constitution itself does not seem to use the word "person" this way.

As further evidence, the majority opinion cited several examples where the federal government at the time the Amendment was written did not protect the unborn (in the year 1868), and the Court demonstrated that state laws against abortion were written after the Fourteenth Amendment with the usual justification being that abortion was an unsafe procedure to the mother.

Only in the twentieth century did some state laws begin to pass that defined human life beginning at conception based on newly available medical evidence. Even in these cases, the Court pointed out that the penalty for murder was seldom if ever applied. The Texas law in question in Roe v. Wade was based in part on the assumption that life begins at conception. The Court responded:
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. 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.
As much as it pains me to admit it, the Court's decision makes perfect sense. In fact, as much as it distresses me that the unborn are not protected by the Constitution, I do not want the Court defining personhood beyond what the Constitution says.

The reason for not wanting this should be obvious to pro-lifers who believe, under false pretenses, that the Courts are too powerful. If the Court begins defining personhood without reference to the Constitution, what is to stop them from going in one of two dangerous extremes?

The extremes are excluding persons that we can all agree by consensus should be protected, or including as persons those whom we can probably agree by consensus should not be included.

For example, what would stop the Courts from arbitrarily deciding that personhood excludes immigrants who have not yet been naturalized in the United States?

To liberals and conservatives alike who may consider this far fetched, would anyone put this past the reasoning of Donald Rumsfeld in his use of torture at Guatanamo Bay? What if the state deems all Arab immigrants are a threat, and therefore do not have rights under the Constitution if they have not been naturalized?

Or, in the other direction, what would stop the Court from deciding that PETA is right when it says that animals are people too?

If there was a widespread consensus that Americans want to protect animals, I'd support it. However, I wish to place the protection of human life ahead of animal life.

In any case, I'd rather the Courts were interpreting what is in the Constitution by a wide-spread consensus rather than making up their own rules of interpretation!

Wide-spread consensus is demonstrated through the Amendment process.

What are pro-lifers to do?

Roe did not make the right to privacy against the unborn absolute. The Court explicilty upheld that some regulation of abortion could be permitted. Perhaps this gives some pro-lifers hope that Roe could simply be overturned. Many want to attack the central tenant of Roe that abortion is a Constitutional right under privacy.

I think this is a false hope - a red herring - a virtual legal impossibility. Also, it's a mistake to even try with the goal of protecting all unborn children. We really do not want medical privacy repealed. Rather, we want the right to privacy afforded to the mother to also apply to her unborn child.

While a valid case is conceivable that may help the court to limit the right to privacy more tightly than Roe such that abortion would not be considered a Constitutional right, the consequence could be either infringements on legitimate privacy, or a definition of privacy that would make abortion restrictions hard to enforce. Thus, I would conclude that our hopes should not be placed in the courts when an Amendment holds so much more promise.

The current Court may agree to some restrictions on abortion, and Roe laid the groundwork for this with some specific guidelines. However, given the actual language in the Constitution, it would be nearly impossible for the Court to simply overturn Roe without merely inventing a definition of personhood that is not clearly used or stated in the Constitution itself.

Neither liberals nor conservatives should want the Court doing this. To allow the Court to do such a thing would be to give the Court far too much power!

So, we must work within the guidelines Roe outlines for incremental change until we can garner a consensus support for a Right to Life Amendment. These victories will be very small, and Roe outlines where we can go. I wish more Democrats were willing to push abortion restrictions to these limits, but I can understand the hesistancy to go beyond these limits. What is the point in passing legislation you know the Courts will overturn?

Republicans have come dangerously close to violating some of those Court guidelines, while Kerry has consistently argued according to the strictest interpretation of these guidelines. For example, the Courts held that third trimester abortions could be regulated unless the physical health of the mother were at stake. (see the full text of Roe ).

On the partial birth abortion ban, the Republicans tried to push through a bill that had no exclusion for the health of mothers, and Kerry opposed it on the grounds that it violated Roe. The simple fact is that he was legally right. The Court specifically addressed this in Roe!

This case is an example demonstrating that Kerry is not truly swayed by the polls, because a huge number of people, even Democrats, were willing to go along with the partial birth abortion ban. Kerry has taken it on the chin for this, especially from Catholics.

However, a cynic might say that the Republicans were trying to pass a bill they knew would be struck down so that they could appear pro-life without actually stopping a single abortion. They could simultaneously claim to be pro-life, while blaming the Court for the failure of the law. This may be good politics, but it is bad use of legislative power. Kerry was simply arguing that there is no point in passing legislation that the Courts will immediately overturn.

A second version of the ban is currently being tested in the Courts as I write, and Kerry neither opposed nor supported the second pass at this legislation. The clause protecting the health of the mother is still vague. (note: a federal court in NE ruled the ban unconstitutional after I wrote this article)

The procedure was rare and can be done through other means anyway - and this isssue is more symbolic than real pro-life legislation. The bottom line is that Kerry did nothing more than reiterate the law of the land, and in this sense, he is doing the legally (as opposed to morally) right thing to do as a Senator sworn to uphold the Constitution.

The more critical incremental change is federal funding of abortions under various government entitlement programs. Opponents of abortion (including myself) do not want our tax dollars spent on something we deem immoral - murder.

The pro-choice camp holds that Roe has made abortion a Constitutional right, and therefore it would violate the Constitution to withhold federal taxes from this right in entitlements.

The original Roe decision does not specifically address this issue, so it is untested waters. I would disagree with Kerry on this issue and say we should test the limits of the law here in Court.

Ultimately, however, the Courts are not going to overturn Roe based on anything to come out of a decision on federal funding of abortion.

Some Catholic critics of Kerry state that he waffled on the abortion issue because in 1972 he stated that he personally opposed abortion and believed that the issue belonged in to the states. Now he upholds the decision of the federal courts even as he says that he continues to personally oppose abortion.

Kerry has consistently always upheld the most recent decisions of federal courts over state courts, and the Supreme Court over lower courts. That's what he is sworn to do. Again, Kerry is simply following the law here, and should not be criticized for that. If we're going to criticize him, do it for the right reasons - not working to change the law he is sworn to uphold!

Kerry claims to believe in separation of Church and state, and on this principle, he is clearly affirming Guadium et Spes no. 76: "The Church and the political community in their own fields are autonomous and independent from each other."

Bush has said that he will not use abortion as a litmus test for appointing Supreme Court Justices. He seems to know this won't do any good. Kerry has said the same.

Indeed, both have maintained that they seek competent judges who interpret the Constitution strictly. We see above that there is no way to interpret the current Constitution strictly in such a way that the unborn are protected without appealing to definitions outside of the Constitution itself. Bush knows this as well as Kerry.

Bush supported the partial birth abortion ban, even though it will likely fail in the Courts. Kerry simply said that he supported the Constitution and wanted a clause to protect the health of the mother to ensure an enforceable and meaningful law was passed.

Bush has cut federal spending on abortion, but Republicans typically make cuts to social services and do not believe in entitlements in general. There may be less moral high ground in Bush' stance than there is cheapness as he awards his corporate cronies tax breaks. Indeed, Bush's cuts to spending did not only effect abortions, but pre-natal care and AIDs treatment.

Kerry has said that as long as abortion is a Constitutional right, he sees no reason to cut federal spending on it in entitlements, even though he personally opposes abortion.

How should pro-lifers vote?

As I stated in the beginning, we must work to amend the Constitution with a definition of personhood that we know is morally right. An Amendment to the Constitution requires a two thirds majority vote in both Houses and the consent of three fourths of the States. Therefore, we must build the wide-spread consensus that the Court itself referenced that human life begins at conception.

There is no short-cut.

Bush has said he would support a Right to Life Amendment if it were "overwhelmingly popular" and contained exceptions for a woman's health and for rape and incest.

Apparently, Bush doesn't really believe the unborn are human persons, because there would be no reason to make exclusions for rape and incest or to put a mother's life over the child. John McCain took Bush to task for this in 2000. Bush re-affirmed his belief that the unborn are not really persons when he made his stem cell decision referring to embryos as "potential life" rather than actual life.

Whatever we think of Kerry, Bush is clearly not truly a pro-life candidate. Neither was his father, so why should we be surprised.

Kerry has consistently said that he personally opposes abortion but will uphold the Constitution as he is sworn to do.

I'm willing to go out on a limb and state that even though Kerry has not explictly said it, if we pro-lifers were actually able to create an overwhelming consensus that human life begins at conception, Kerry would be more likely to back a consistent and unqualified Right to Life Amendment than Bush!

Kerry's not in a position where he can openly say this, because no such consensus exists in America. Yet, for over thirty years, he has repeated the theme that he is personally opposed to abortion. Even his most cynical critics accuse him of being swayed by polls. Whether by moral conviction or because of the polls, if we gave him a legal way to outlaw abortion that was popular, he'd take it, and he'd be less likely to insist on unacceptable exceptions.

As a politician, Kerry knows he must represent his constituents, and his constituents are largely pro-choice. Indeed, I think the Church recognizes that he has a moral obligation to represent his constituents along-side of an obligation to work to correct defects in the law.

I believe the Church's acknowledgement of this is demonstrated in the fact that so many Bishops recently refused to come down hard and clear on him.

Kerry is also a lawyer, and he can see plainly that much of the Republican party's abortion agenda over the past decade or so is smoke and mirrors that has not and will not stop a single abortion.

If I'm interpreting the law and the situation correctly, and Bush doesn't know that Kerry is legally right, than Bush doesn't belong in the White House due to incompetence. If he knows this is right, and is playing a political gamble to garner the Christian vote, he's a liar who doesn't belong the White House because he lacks moral integrity.

Even if I am wrong about Kerry and what he might do about abortion if we could create a consensus, I feel fairly certain I am right about Bush and abortion, because I am basing my opinons on his words and demonstrated deeds!

Peace and Blessings!

Readers may contact me at

posted by Jcecil3 2:47 PM

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