Editor’s Note: We add these observations to our (Feb. 10th) discussion of Roe v. Wade, indicating some incompatibilities between the Court’s presumed jurisdiction and the victims of their decision.
It is necessary, first, to distinguish the function of a legislature from the function of a court. Legislatures formulate laws. Courts interpret and apply laws to specific cases.
The purpose of formulating laws is to enunciate the rights of people, making it possible for the government to protect those rights by law enforcement. Making laws sometimes involves the spelling out of peoples' obligations toward the rights of others. Among the rights and obligations of people are some that pertain to them as individuals and some that pertain to them as members of a community.
Courts, whether at the state or federal level, should be cautious of the danger inherent in their role as interpreter of law, that of unwittingly changing the content of the law by their interpretation of it and then ruling, not on the law, but on their modified version of it. In this way a court would usurp the functions of a legislature. It is quite possible that several federal courts have erred in this, when they declared the time-honored abortion laws of several states to be unconstitutional.
In his dissenting opinion,
submitted January 29, 1971, Senior Judge Win. J. Campbell states: "As a
federal court we are concerned only with the limited question of whether in
enacting this statute (abortion law) the people of
"In my view this
unwarranted intrusion by the federal judiciary into the affairs of
In a similar vein, Justices White and Rhenquist dissented in the Supreme Court's decision of January 22, 1973: "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 which the Constitution extends to this Court."
"The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life which she carries. Whether or not I might agree with that marshalling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs."
The Supreme Court's decision
referred to above, declaring the abortion laws of
1. There is no mention of the unborn in the Constitution. Therefore the Constitution does not involve itself in any obligation to protect their lives.
2. The state laws had been enacted to safeguard women from injury due to abortion, and not to save the life of their unborn. Now that the abortion procedure is relatively safe for women, the state no longer has any cause for prohibiting it.
3. Prohibition against the sale of contraceptives is unconstitutional, because it infringes on the right of marital privacy. Therefore, to prohibit abortion is also unconstitutional.
4. There is no adequate tradition of social custom showing respect for fetal life. Therefore, society has insufficient interest in fetal life to demand its protection by law.
As to the first assumption,
please refer to Dr. Joseph Witherspoon's "amicus" brief Roe v.
To evaluate the second assumption, a careful study of history should reveal the reason why the States' laws were enacted. Since the safeguard of women and the preserving of fetal life are in no way incompatible, but rather supplementary, reasons for opposing abortion, it is highly probable that both reasons might have prompted the enactment of those anti-abortion laws. Regardless of the outcome of such a study, it would seem that the States' present fight to retain those laws (in this modern day of relatively safe abortions) is an indication of their intention to preserve fetal life -- and this should be credited to them as their reason for those laws.
The third assumption appears to lack logic, since contraception and abortion are not in the same class with one another. Contraception prevents fetal life from forming; abortion destroys fetal life after it has formed. For those who hold fetal life to be the human life of a person, a third party is involved in abortion, putting it beyond the realm of private domain. To conceive or not to conceive may be a matter of marital privacy but, after conception has taken place, it is reasonable to hold that a social interest springs into being along with the new offspring of human parentage.
A more profound and more critical study of history than is possible here would be required to evaluate the fourth assumption. However it might be noted that the present, widespread opposition to the 1973 Supreme Court’s decision is not likely to have been founded in a vacuum. Whether there are deep roots to that heavy groundswell of disapproval will be manifested in the near future, as the political machinery of the democracy swings into action toward an amendment of its Constitution.
To insure full justice for the unborn, the Constitution would have to be amended only to the extent of stating explicitly that the unborn of human parentage, from the time of their conception, are included in what the Founding Fathers, in their Declaration of Independence, spoke of as “all men.” Thus, “All men, including those waiting to be born, even from their conception, are created equal and have certain inalienable rights, to life, liberty and pursuit of happiness.” This would guarantee the due process of law to each unborn as a defense against the threat of abortion.
There might be some who would say that the protection of the unborn, by law, would be unenforceable, especially in the early stages of gestation. To this objection it could be said that, even so, there are some goods to be gained by such legal protection, goods more extensive than the possible harm due to partial non-enforceability. The dignity of society would be enhanced by its stand for justice to all. Individuals would increase in moral stature by the necessity of rising to the needs of distressed women and their helpless offspring.
The present legally acceptable method of handling the problem of a distressful pregnancy, that of killing the unborn by abortion, is not a reasonable solution, nor is it the only possible solution to the problem. It fails to ask whether parents have a right not to want their offspring. It too easily caters to irresponsible sexual conduct and reinforces selfishness in that segment of society that may already be deficient in social discipline. It tends to retard progress in the age-old task of refining human sensibility to the needs of others.
Prior to Roe v.Wade, the abortion debate had been going on so long that one would think all parties in the dispute would have had an opportunity to develop their positions and would have been given due consideration by the Court. And one would think that a careful process of reflection and research, according to scientific rules, would have been initiated and completed before such a serious decision would have been made.
Evidently that did not happen. Discussion took place, and in those discussions is seen the implication that the Supreme Court did not know whether or not the fetus is a human being. Consequently, that means - put bluntly – they didn't know whether they were, or were not, allowing the killing of a human being.
In the rearguement (second
hearing) of Roe v. Wade, Chief Justice Burger asked Mr. Flowers
At this point, Justice Stewart asked Mr. Flowers: "Now how should
that question be decided? Is it a legal question? A constitutional question? A
medical question? A philosophical question? Or a religious question? Or what is
it?" Mr. Flowers replied: "Your Honor, it's our position that
the definition of a person is so basic, it's so fundamental, that the framers
of the Constitution had not even set out to define it. We can only go to
what the teachings were at the time the Constitution was framed. We have
numerous listings in the brief by Mr. Joe. Witherspoon - a professor at the
In a very challenging question, Justice Blackmun asked Mr. Flowers: "Is it not true, or is it true, that the medical profession itself is not in agreement as to when life begins?"
It is here that we begin to see the root of confusion in the above discussion. Biologists are never ambiguous about the beginning of the physical life of organisms. In the case of sexual reproduction, it is at the moment of fertilization. Justice Blackmun however is asking that biologists should be authorities also on the beginning of the personal life of a human being, which is proper to the philosopher.
With specialization in the biological, psychological, sociological, legal and other sciences that deal with human beings, it is characteristic of the sciences - even though they often operate in concert with one another - to deal with different aspects of the human being. Modern biological and medical scientific language does not use the term "person." It concerns itself with the body, not the metaphysical status, of the human being. "Person" is a term in the ordinary language of law, ethics and psychology; but not of medicine or biology.
The historical foundations for this confusion is too lengthy to review here. Basically, the scientific revolutions of the last three hundred years have produced as many different languages as there are sciences. Less has been done, however, to integrate the new information, causing the human being to become many different, sometimes contradictory, things. We've come a long way from the unity of method, language and conclusions of Scholasticism!
So, the debate is clouded from the beginning with these linguistic and conceptual gaps among the sciences. And that's all we can call it, for if the sciences are functioning accurately, they should respect the uniqueness of one another's subject-matter and have confidence in one another's conclusions, just as they do in their own. But if there is no agreement on the definition of the terms of the proposition there cannot be either agreement or disagreement on anything else! All that can result is a list of opinions expressed from various perspectives about closely-related subjects which, individually, are meaningful enough to the people using such terms in their own discipline, but not necessarily to another's. In this situation, quite literally, we have not "come to terms;" we are not talking about the same subject; we have no "meeting of the minds."
As the more highly specialized, modern sciences develop, the technical vocabulary needed to represent their more advanced conclusions, will become less linguistically identical even on basic terms. To suggest a reply to the Justice, we might ask, "Why would you expect a medical journal to be speaking in the language of law, philosophy, or theology?"
Since the Justice had posed the question, perhaps we could ask him to tell us what Law says a person is. Because asking a question requires the understanding of the terms of which it is composed, he might have told us what we are dealing with, from the legal perspective. But the Court was suspiciously silent on examining the nature of abortion’s prime victim, the one waiting for birth, but never living long enough to experience it.
In pondering these problems, we attempt to unravel some of the knots, noting that the baby, the fetus, the embryo, the zygote, conceptus - call it whatever you will - is one and the same object. So, the main legal and moral question is and always should have been: "Ought we to allow the killing of this thing, before we know what it is that is being killed?"What we are proposing to do is to show the fullest, most objective picture of what abortion is. To put it another way, we are trying to present abortion as a question that ordinary, thinking persons should be able to answer with some notable measure of agreement.