Fetal Life and Abortion:
Human Personhood at Conception
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Section 9: Roe V. Wade Examined


We have selected four areas in the "Roe v. Wade" decision that prompt some questioning: 1. the use of the expression “potential human life,” 2. the illogical use of the term “privacy,” 3. the misinterpretation of why the states had criminalized abortion, and 4. the ethical violation of acting while in doubt.  If, indeed, these instances have substantially influenced the decision-making process, the decision itself should be questioned.

The expressions “potential human life” and “potential life” have no corresponding reality in the concrete universe.  At the moment of conception, the offspring of human parentage cannot be merely a “potential” human being.  If he or she has the potentiality to act as a human being at any time in the distant future, he or she is already is a human being.  That is because specific potentialities can be possessed only by members of the species to which such activities are proper.  A lesser animal cannot perform uniquely human activities because it does not have the ability to do so.  It does not have the ability, simply because it is not human.  To speak of something having the potentiality to “be” a human at some time in the future, is even more radically absurd.  Simultaneously, it would have “to be” and “not to be” a human being.

In U.S. Supreme Court Reports [410 US 217, 35 L Ed 2nd] "Roe v. Wade" p. 191, Justice Douglas states that “The present statute has struck the balance between the woman’s and the States’ interests wholly in favor of the latter.  I am not prepared to hold that a State may equate, as Georgia has done, all phases of maturation preceding birth.  We held in  that the States may not preclude spouses from attempting to avoid the joinder of sperm and egg.  If this is true, it is difficult to perceive any over-riding public necessity which might attach precisely at the moment of conception.  ….the statute is overbroad because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth.”  

The “joinder of sperm and egg,” as Justice Douglas puts it is, indeed, the issue.  If his argument is allowed to stand for truth, there is nothing of primary significance in human reproduction in the moment when one sperm out of million is allowed to penetrate the unfertilized egg, initiating a series of events which could only be characterized as spontaneous and purposive self-movement on the part of the fertilized egg, the “zygote” stage of the offspring.

It should be obvious that the precedent set in "Griswold" is not validly applied to "Roe v. Wade". In "Griswold", the Supreme Court had allowed the destruction of the essential elements of human reproduction (sperm and egg) by contraception. It does not logically follow that the same sanction applies to abortion. Abortion is the destruction of what, in the order of nature, results from their “joinder,” namely the offspring of human parentage. 

Justice Douglas states that the statute is overbroad in equating the value of human embryonic life with the worth of human life immediately before birth.  He doesn’t present the “yardstick” that he uses for his measurement, but he does indicate the basis of his error.  He quotes Justice Clark: “To say that life is present at conception is to give recognition to the potential, rather than the actual. …The phenomenon of life takes time to develop, and when it is actually present, it cannot be destroyed.” 

We invite our viewers to think upon the expression “potential human life,” as used in "Roe v. Wade", to see whether there could be any reality in nature that corresponds to the Supreme Court’s expression.  It is obvious to us that the potential for human activity or human development (human life) can exist only in an already existing human being.  A specific capability can be resident only in something belonging to the species in which the actualizing of that potential is proper, according to its nature.  If the conceptus, even in the zygote stage, has human capabilities, he or she is already a human being.  For further reading, you may refer to “unbornperson.org” at Sections 2, 3 and 4.

The value of “privacy” in "Roe v. Wade", at least in part, is derived from its sanctioned use in the Connecticut case, "Griswold".  It is used in "Roe v. Wade" not univocally, that is, not in the same sense as in "Griswold."  It is used analogously, that is, because of some similarity, other than identity, with "Griswold".  In "Griswold" the privacy is marital and limited to the use of contraception, unimpeded by restricted sale of contraceptive materials by the state.  Also it involves a mutual choice of only two persons, the husband and wife, a choice that the Court decided has no social consequence.  In "Roe v. Wade" the privacy is neither marital nor mutual, since the husband has no legal right to intervene in the preservation or destruction of his offspring.  Mutual consent, proper to marriage, is not an element there.   Also abortion goes beyond the realm of two persons; it concerns their offspring, a situation involving social consequences.

Although the term “privacy” in both cases seems equivalent to autonomy, in "Griswold" it applies to an institution, namely marriage, whereas in "Roe v. Wade" it applies to an individual.  But, even here, the privacy is different from that in "Griswold" since an abortionist and assistants are involved, providing at least some degree of additional social complicity.

With reference to the reason why the states had criminalized abortion, the Court emphasized protection of the mother, almost to the exclusion of saving her baby’s life.  It is clearly evident that the Report on Criminal Abortion, by the American Medical Association, in the month of May, 1857, and by a later Report, in 1871, emphasized respect for the life of the unborn.  This Report of the AMA declared: “The destruction of the fetus is a heinous crime.”  For this very reason, the Report was aimed at initiating laws against abortion.  Many of the state laws criminalizing abortion were prompted by these Reports of the American Medical Association, as witnessed by the dates of their enactment.

With reference to ethics, it can be shown that the Court had made an unwarranted assumption.  They assumed that the human person does not begin to exist at conception.  The assumption is unwarranted because there is no possible proof to demonstrate that the person does not begin to exist at conception  The legal precedents that they offered do not establish the non-personhood of the conceptus; they merely represent opinions of randomly chosen people.

In sanctioning the killing, the Court had to assume, for legal purposes, that the victim is not a human being.  They certainly would not have sanctioned the killing of a human being.  Yet they, themselves, protested that they did not know when the life of a human being begins.  By their own admission, the Court was in doubt concerning the fact of whether a human being is present from the time of conception and, therefore, whether present at the time of abortion.  By their action, they ignored their ethical responsibility not to act hurtfully in the face of possible serious harm. And they failed to honor the possible good, in this case, the life of a human being.  The ethical principle in this instance concerns acting while in doubt.  The Court’s feeble and incomplete efforts to resolve the doubt, and their attribution of incompetence in everyone else, should not be construed as arriving at a reasonable removal of the doubt, which would be required to justify their action. 

A court’s decision should be guided by justice.   Justice is a moral imperative that obliges us to render to others what is due to them.  In "Roe v. Wade"  we find justice to be lacking in the most fundamental element of the case: the condemned are not given a hearing!  If a court were to err in their judgment of whether a man is getting exactly what he deserves, we might excuse them, using the old saying “To err is human.”  But when the Supreme Court of the United States takes it upon themselves to decide that the offspring of human parents are not human persons and, therefore, may be killed at the discretion of another person, we cannot excuse their unjust and unreasonable decision.

If  "Roe v. Wade" were the only decision of its kind in the history of the Court, perhaps our criticism would be less harsh.  In a previous case, the "Dred Scott" decision, (1857) fully-grown men and women (because their skin was black?) were declared “non-persons” by the Court, by denying them the status of free men.  In "Roe v. Wade" the offspring of human parentage who are waiting to be born, simply because they are not yet born, are called non-persons (“not persons in the full sense”) by the Court.  In the former instance the legal consequence was slavery.  In this present case, the legal consequence is death.

The court was wrong in its "Dred Scott" decision, and is wrong in "Roe v. Wade.  In the former case, the Court’s decision was replaced by the commonsense judgment of the nation’s citizenry as represented in the action of their federal legislature (13th Amendment, 1865) and reinforced by the action of their president (Emancipation Proclamation), 1862 and 1863.)  As to "Roe v. Wade" the present court continues to uphold the erroneous claims that had been proclaimed in that decision.  However the defense of those claims, as seen in Casey, (Planned Parenthood of Southeastern Pennsylvania v. Casey,) 1992, indicates a feeling of uncertainty as to the validity of those claims.

In "Casey" the Court shied away from any serious examination of its parentage in "Roe v. Wade."  They claimed that any critical examination or reversal of that decision would result in catastrophe to the nation, by loss of confidence in the Court’s supposed infallibility.  They claimed that they could not tamper with "Roe"  because women had become accustomed to having legalized abortion as an essential element of their lifestyle.  In this evasive manner the Court affirmed their inability to question the "Roe v. Wade" decision.

It is our contention that the offspring of human parentage, waiting to be born, were not given a fair hearing in "Roe v. Wade."   Nor was justice extended to the people of this nation, who had already decided, by the laws of their respective states, that abortion is a crime against the rights of individuals and against the common good of the nation.

On behalf of justice, the Court should be questioned on its approach to handling the humanity of our brothers and sisters who are waiting to be born.  Robert M. Byrn, professor of Law, Fordham University School of Law, has indicated the source of the Court’s unfairness.  In An American Tragedy: The Supreme Court on Personhood, under the heading: “The Presumption against Human Life and Legal Personhood,” Professor Byrn makes this statement: “It is evident that the Court’s errors in "Wade" are cumulative.  From a distorted interpretation of the common law of abortion to a general misunderstanding of the status of the unborn in American law, the Court erected a flimsy house of cards, piling one error upon another. Part of the reason for the Court’s errors in "Wade" was its approach.  By structuring the opinion to create at the outset a right of privacy which includes the right to abort, the Court shifted the burden to the State of Texas to prove that unborn children are legal persons, whereas the presumption should have been in the children’s favor.  Moreover, the Court guaranteed the irrebutability of the presumption by refusing to decide whether the victim of an abortion is a live human being.  Having created an insurmountable barrier, the Court proceeded to decide the fourteenth amendment personhood of unborn children in a case where they were unrepresented by a guardian and wherein no comprehensive record of expert testimony on the issue of their live human being-ness had been developed in the trial court.”

We claim, further, that the present U.S. Supreme Court, thirty-one years later, is negligent in not reviewing the decision of 1973.  Advancement in scientific evidence, today, increasingly upholds the humanity of the unborn from the time of conception.  These thirty-one years of personal and social experience of post-abortion syndrome demonstrates the serious emotional and physical harm inflicted on women by abortion, not anticipated at the time of that decision.  Not less significant is the fact that the people of the nation are still insisting on their right and duty to protect the lives of the unborn and the well-being of their mothers. 

Added  to this is the righteous resentment of those of us, born since "Roe v. Wade", whose death, before birth, had been legally sanctioned by our government.  Add, further, the rightful complaint of a man who has fathered a child, yet has no legal right to protect the life of his own “flesh and blood.”  Think, too, of the anguish of older persons who see in "Roe" the legal justification for their own possible extermination.  By the “logic” of "Roe v. Wade", they too, because of contrived deficiencies, could be legally done away with at the request of others.  Legalized euthanasia and assisted-suicide, could be the starting point of that additional atrocity.

The key obligation facing the Court was, and still is, to examine thoroughly the humanity-status of the unborn of human parentage, beginning with their conception.  Approval to shelter the killing, by the Court, should have required evidence that the unborn are not human beings.  That evidence is lacking, and attempts to obtain such evidence were inadequate in light of the seriousness of the matter.

It might fairly be indicated here that the defense in "Roe" was also lacking in competence.  Both members of the dispute should have insisted on a more credible process of ascertaining the truth concerning the reality-status of the prime victim of abortion, the one waiting to be born.  Both should have been aware of, and should have insisted upon, observing the traditional ethical principle of not acting harmfully in cases wherein an essential fact is held in doubt. Unfortunately both, constrained by the limits of legal precedent, seemed to be unaware of the limits of law.  Law cannot tell us who or what is a human being and who or what is not a human being.  In this area of understanding, law can only proclaim what it gathers from other sources, well exemplified by our Founding Fathers, speaking through their Declaration of Independence

Contact us at reply@unbornperson.org

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