The Social Reformer's Definition of Life: Demeaning the 'Sanctity of Life' for an Enhanced 'Quality of Life' (Roe v. Wade, revisited) | Eastern North Carolina Now

    Sadly, the Court redefined "life" to mean only babies who have been born. As Justice Blackmun wrote: We are persuaded "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn. The unborn have never been recognized in the law as persons in the whole sense."

    In assessing the interests at stake when a woman doesn't want the baby growing inside her, the decision reads:

    "The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy. The third reason is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. 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. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. It is with these interests that this case was concerned. [pp. 151-152]

    But the privacy right involved cannot be said to be absolute. A State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. The Court has refused to recognize an unlimited right of a person to do whatever he or she wishes with his or her body.

    We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.

    In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

    With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

    This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

    With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

    Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here. [pp. 163-165]

    And so that's how the Court came up with its famous balancing test:

    1. In the first trimester, the state (that is, government) can treat abortion only as a medical decision, leaving medical judgment to the woman's physician.
    2. In the second trimester (before viability), the woman has the right to have an abortion and the state can assert a legitimate interest to protect the health of the mother (ie, to regulate abortion procedure so that it related to the woman's health).
    3. After viability (the third semester), the potential of human life can be considered as a legitimate state interest, and the state can choose to "regulate, or even proscribe abortion" as long as the life and health of the mother is protected.

    "A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, violates the Due Process Clause of the Fourteenth Amendment.... This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. [Roe, pg. 166]

    Roe is clearly quite a stretch under the "Due Process" clause of the 14th Amendment. In fact, I firmly believe it was incorrectly decided under that amendment. The Court stated many years ago that the Due Process Clause protects those liberties that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." [See Snyder v. Massachusetts (1934), pg. 105] The reference point was the time period in which the amendment was drafted and enacted, which was 1868. (Valid ratification is still not certain since the southern states were coerced into ratifying the amendment after their defeat in the Civil War). Liberties "rooted in the traditions and conscience of our people" refers to those which were fundamental in the establishment of our country. I don't argue that the rights of privacy are not fundamental. They are. Our notions of individual liberty are certainly not so restricted as to exclude the right of marital privacy. But there can be no understanding or argument that the right to an abortion is one that is "so rooted in our traditions and culture" as envisioned by the drafters of the 14th amendment. There is no understanding that a privacy right can extend to situations that directly involve the brutal denial of rights of another. Alexis de Tocqueville, who compared the embrace of liberty in America to that in Europe in his book Democracy in America, said: "It was never assumed in the United States that the citizen of a free country has a right to do whatever he pleases; On the contrary, more social obligations were there imposed upon him than anywhere else." [Vol. 1, Chapter V] Abortion is a woman's rights movement issue, an empowerment tool, designed to give women greater control over her body and a "get out of jail" free card over certain responsibilities for the purpose of allowing her greater freedom over her time and energies.

    Never once does the Court discuss the "Equal Protection" rights of the unborn to the rights and privileges afforded other human beings. The Court acknowledges that there comes a point in the development of the fetus when it becomes a viable human being. Yet it seems to deny that it is a "citizen" and therefore not entitled to any protections under the US Constitution. This is similar to what the Supreme Court held for Dred Scott (1857), the slave who sued for freedom when he was moved to a "free" state. In that decision, the Court held that those of African descent could never be "citizens" and therefore are not entitled to any protectable rights under the Constitution. The Supreme Court seems to have a habit of defining which human beings have rights and liberties. Our laws need to be enforced with equal justice, not social justice.

    Carolyn Gargaro in her article "Roe v. Wade: The Unconstitutional Decision," wrote: "Recall the 1857 Dred Scott v. Sanford decision, which declared that slavery could not be prohibited by Congress in any territory of the U.S. and that African Americans were not full persons and not afforded the same rights as "full persons." Sound familiar? President Lincoln argued that the slaves were persons, not possessions, and that their unalienable right to liberty was protected by the Declaration of Independence unborn. To add to the irony, after the Emancipation Proclamation in 1863, came the Thirteenth (1865) and Fourteenth (1868) Amendments, all which overthrew slavery and the erroneous Dred Scott Supreme Court decision." How ironic it is that clause 1 of the Fourteenth Amendment, which was drafted specifically to overturn the law established by the Dred Scott case and to provide citizenship for a class of persons who were ignored, is the very clause used by the same Court to deny citizenship to another class of persons. The Fourteenth Amendment was supposed to protect people from the arbitrary denial of rights.

    Justice William Rehnquist also did not believe that abortion was a right reasonably protected under the 14th Amendment. In his dissenting opinion, he emphasized that the decision by the majority to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one amounts to judicial activism rather than a determination of the intent of the drafters of the Fourteenth Amendment. He wrote:

    "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," [Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); discussing the criteria for those rights that should be covered under the 14th Amendment's "due process" clause]. Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

    To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and "has remained substantially unchanged to the present time."

    There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." [Roe, pp. 176-177]

    Justice White dissented as well and wrote: "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. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. 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." [Roe, pg. 179]

    Why the regulation of abortion should become a federal constitutional issue is a sign of how far our nation has strayed from the initial clear language of our Constitution. Nearly all governmental authority over matters touching on the lives of citizens was left to state governments, to reflect the interests of its citizens. James Madison wrote in Federalist No. 45: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state." The Bill of Rights, which lists those rights possessed by Americans that the government shall not take away, or burden without an absolute necessity, includes the Ninth Amendment, which proclaims that the prior amendments are not meant to diminish the importance of other rights retained by the people, and the Tenth Amendment, which makes the residual powers of the state governments even clearer.

    Many claim that the right to an abortion potentially falls within the purview of the Ninth Amendment, which reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But an essential concept in this country, and the reason we are a nation of laws, is that no person is entitled to exercise their rights when they infringe upon the rights of another. It has long been the dominion of the states - and not the federal government - to enact laws which define self-defense, justifiable homicide, manslaughter, rape, and murder.

    Our Bill of Rights were cautiously drafted and adopted for a reason. And that reason was the apprehension of the States for a federal government by the very nature of man and power would tend to try to concentrate more power in itself and assume powers away from them. As Machiavelli wrote: "Whoever wishes to foresee the future must consult the past; for human events ever resemble those of preceding times. This arises from the fact that they are produced by men who ever have been, and ever shall be, animated by the same passions, and thus they necessarily have the same results." Alexander Hamilton, a leading Federalist argued that a Bill of Rights was not necessary and in Federalist No. 84, he posed: Why do we need a Bill of Rights to "declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

    He went into further detail: "It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was the MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." [Federalist No. 84]

    The Federalists were concerned that any constitutional enumeration of liberties might imply that other rights, not enumerated by the Constitution, would be surrendered to the government. Nationalist (turned Federalist) James Madison argued that any attempt to enumerate fundamental liberties would be incomplete and might imperil other freedoms not listed. In 1789, he introduced 19 draft amendments (to become the Bill of Rights) to the House of Representatives and for one in particular, he offered this comment: "It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution: "The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution." This draft amendment submitted by Madison would be the precursor of the Ninth Amendment. It was specifically proffered to quiet fears that a bill of specifically enumerated rights would be interpreted as a denial that others were protected.

    A similar sentiment was expressed in the anti-Federalist essay, Federal Farmer No. 16 (widely acknowledged was written by Founder Richard Henry Lee, of Virginia): "The supreme power is undoubtedly in the People, and it is a principle well established in my mind, that they reserve all powers not expressly delegated by them to those who govern; this is as true in forming a state as in forming a federal government. There is no possible distinction but this founded merely in the different modes of proceeding which take place in some cases. In forming a state constitution, under which to manage not only the great but the little concerns of a community: the powers to be possessed by the government are often too numerous to be enumerated; the people to adopt the shortest way often give general powers, indeed all powers, to the government, in some general words, and then, by a particular enumeration, take back, or rather say they however reserve certain rights as sacred, and which no laws shall be made to violate.... When we particularly enumerate the powers given, we ought either carefully to enumerate the rights reserved, or be totally silent about them; we must either particularly enumerate both, or else suppose the particular enumeration of the powers given adequately draws the line between them and the rights reserved, particularly to enumerate the former and not the latter, I think most advisable: however, as men appear generally to have their doubts about these silent reservations, we might advantageously enumerate the powers given."

    In his address to the House to introduce the final draft of the Bill of Rights, Madison said: "It has been said, by way of objection to a bill of rights....that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation, but they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse."