The Moral Implications of a Major Supreme Court Decision - Case Study Example

Roe v. Wade: an evaluation of the moral implications of a major Supreme Court decision INTRODUCTION In January 1973, the Supreme Court, in its decision1 in Roe v. Wade, 410 U.S. 113 (1973), overturned a Texas statute forbidding most abortion procedures.2 The majority opinion did not limit itself to the particulars of the case. Rather, it established a general right to abortion, albeit one increasingly constrained as the fetus matures. “State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy3 [410 U.S. 113, at 114].” The Court’s decision in Roe had the effect of legalizing what, more often than not, was an unlawful (or at least tightly constrained) procedure in every state of the Union. This, in turn, led to numerous efforts to overturn Roe, as well as those subsequent Court decisions that have sustained or expanded its ambit. To date, these efforts have enjoyed only modest success. This report provides an overview of the judicial reasoning employed in both the majority and dissenting opinions. Furthermore, it considers the decision in Roe in terms of both the language of the United States Constitution and underlying considerations of the natural law.4 THESIS STATEMENT Roe v. Wade was wrongly decided, both in terms of the Constitution and precepts of natural law. FETAL LIFE AND HUMAN LIFE: A BRIEF EXCURSUS Fetal life Despite confused assertions to the contrary, there is no doubt when life begins during the human gestation process. It starts as a one-celled zygote, and progresses through a marvelous—seemingly magical—process such that 280 days later at human baby emerges. We know that the zygote (or embryo) is alive, quite simply because it goes through the process of mitosis (or cell division), develops into a blastula, differentiates itself, and, in the fullness of time, as a fetus, increasingly takes on those physical attributes that we regularly associate with human beings. At issue, thus, is not whether the zygote, or blastula, or fetus is alive. Rather, it is a question of whether it is human life in the process of development. On the face of it, if it is human life, it has a right to be respected as such. If it is not human life, any commensurate respect becomes no more than voluntary. Fetal human life Establishing when specifically human life—as opposed to what is otherwise nothing more than cellular life process—begins requires an overarching ‘thought regime,’ one that is usually philosophical or empirical. Thus, for example, Thomas Aquinas, the medieval scholastic, suggested that human life—in his terms, the moment at which God infuses a human soul into the fetus—likely began when the fetus ‘quickened,’ or gave direct evidence to its mother that it was actively present.5 More recently, a number of biological researchers have suggested that an embryo represents human life, if only because it is biologically unique and can only develop into a specifically identifiable human being.6 Others establish personhood at the end of the ‘primitive period,’ the moment in gestation—usually seven or eight days after fertilization—at which point the blastula can no longer fully divide to result in the phenomenon called ‘twinning.’ Others argue that a convenient demarcation line may be identified with that stage of embryonic development at which human-assisted further development outside the womb may lead to what would otherwise be a fully developed neo-natal infant. Yet others consider such speculation beside the point, arguing in so many words that, since the fetus has no definable rights, any consideration of its humanity can only be manifested after its birth as a human baby.7 THE DECISION IN ROE v. WADE The majority opinion The language employed by the Supreme Court majority opinion in Roe clearly indicates a dismissive attitude with regard to the prospective humanity of the fetus. “The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life… Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth [410 U.S. 113, at 150].” In an effort to refute the argument that human life might begin at conception, the majority opinion largely adopted the view that, even in the absence of legislative history to support the contention, state abortion prevention legislation was, in the main, designed to protect the health of the mother. “There is some scholarly support for this view of original purpose… [Proponents of this interpretation] claim that the ‘quickening’ distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life8 begins at conception [410 U.S. 113, at 151-2].” Having disposed of any ostensible ‘human’ rights of the unborn child (or their guarantees)—“Perfection of the interests [of the fetus] involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons9 in the whole sense [410 U.S. 113, at 162]”—at least to his own satisfaction10, Justice Blackmun established a woman’s right to abortion contingent on a right to privacy to be found in the Ninth11 and Fourteenth Amendments to the Constitution, specifically in an ostensible ‘right to privacy.’ Having first noted that the “Constitution does not explicitly mention any right to privacy [410 U.S. 113, at 152],” Justice Blackmun continues, “the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution… This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action … or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy [410 U.S. 113, at 152-3].” Discussion On the face of it there appear to be a number of problem areas in Blackmun’s exposition of the Court’s reasoning. First, any reliance on the Ninth Amendment as a vehicle to establish a right ostensibly ‘retained by the people’ is inherently problematic. For example, a Court majority could establish a ‘right’ to possess otherwise unlawful substances through reference to the Ninth Amendment, the language of the Amendment being sufficiently nebulous. Establishing a general ‘right to privacy,’ beyond those enumerated in the Constitution (e.g., Fourth Amendment provisions guarding against unreasonable searches and seizures) or established in common law, effectively creates a ‘right’ out of whole cloth. Second, Blackmun’s discussion of ‘personhood’ appears flawed. The very fact that traditional discussants of fetal personhood have invariably accepted a ‘humanization’ of the fetus at some time during the gestation period meaning, in so many words, that the fetus is a full human being (at least upon achieving that distinction). Third, the Tenth Amendment (relating to “powers not delegated to the United States by the Constitution” being “reserved for the States respectively, or to the people”) certainly implies very strongly that the State of Texas has within its inherent police powers the authority to criminalize or otherwise forbid abortion under certain circumstances. Fourth, and finally, Blackmun’s reliance on the Fourteenth Amendment to establish a personal right to abortion is dubious. Ultimately, it rests on denial of personhood to the fetus. (If the fetus is a person, it is protected by the Amendment.) Yet the reasoning in Court’s decision upon which fetal personhood was denied was, itself, little more than a convoluted postulate. Justice Rehnquist’s dissent In his dissent in Roe, Justice Rehnquist12 touched on a number of weaknesses in the majority opinion. First, the decision was overreaching, in that it established extending far beyond matters raised by the plaintiff. “While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others [410 U.S. 113, at 171].” (This means, in so many words, that essentially specious suits with a purpose of establishing precedent are not to be brought.13) Second, the establishment of some expanded right to privacy is the product of poor legal thinking. “Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word. Nor is the ‘privacy’ that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy [410 U.S. 113, at 172].” Third, the preponderance of evidence points to a lack of popular consensus favoring the establishment of some right to abortion. “The fact that a majority of the States, reflecting after all the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’ [410 U.S. 113, at 174].” Discussion Justice Rehnquist’s dissent, quite properly, was rooted in law and precedent, and not in theology. Nonetheless, it is difficult to escape the notion that Rehnquist’s language at least tacitly pointed to an underlying respect for what Aquinas termed ‘third order’ moral judgments—those reflected in the practical behavior of the great majority of people. Rehnquist did not discuss personhood in his dissent. This was likely not an oversight. Rather, he may have considered that any such consideration, in the context of a Court decision, implicitly contravened the first objection, described supra.14 (Were to Rehnquist to have argued matters relating to prospective fetal personhood, he would almost certainly have proceeded to a discussion of the implications for substantive due process in any abortion, therapeutic or otherwise.) THE DECISION IN ROE v. WADE AS MORALLY UNSOUND RULE MAKING In his discussion of the Court’s decision in Roe v. Wade, Father Stevens references Blackstone. “Qui in utero, est pro jam nato habetur quoties de ejus commodo quaeritur: One who is in the womb is held as already born, whenever a question arises for its benefit. Benefit, in this instance, usually referred to inheritance.”15 Thus, for example, a posthumous child benefited from a deceased parent’s estate in the same manner as already born siblings. Thus, despite the fact that the beneficiary was in utero at the time of the parent’s decease, the beneficiary was nonetheless accounted a genuine person—personhood was established. (It may well have been the case that such a precept grew out of efforts of greedy survivors to deny an individual a share in an estate. But that is beside the point. The vindication of the right of the posthumous child rested on his innate personhood, irrespective his fetal status at the time of the creation of the estate.) Father Stevens continues with the observation that, in writing the majority opinion in Roe, Justice Blackmun relied on a mistaken statement of facts,16 to wit, that the plethora of existing statutory prohibitions had their origins in health considerations for expectant mothers. This, in turn, rendered the decision in Roe tortura legis, a “mangling of the law that creates a tort [or wrong], as opposed to a right.”17 FINAL THOUGHT It would appear from the foregoing that not only was Roe v. Wade wrongly decided, both in constitutional and moral terms, the manner in which the decision came about—through tortura legis—is such that the Court may eventually feel itself bound to revisit the issue and to undo the damage done to the Constitution and to restore natural and Constitutional rights to all persons, born or unborn. Works consulted in the preparation of this report Anderson, K., Arguments against abortion, Probe Ministries/Telling the truth project, August 5, 2003 [updated] Minnesota Family Institute [MFI], Arguments against abortion: pro-life responses to pro-abortion arguments [no date] Stevens, C., The rights of the unborn: from common law to Constitutional law, Priests for Life [no date] U.S., Supreme Court, Roe v. Wade, 410 U.S. 113, 1973 Read More