Roe v. Wade at 40
It’s been 40 years since the Supreme Court ruled on Roe v. Wade universalizing abortion rights. The last reliable poll stated that 48 percent of the American people favor abortion and 44 percent are opposed. So Americans remain almost evenly divided over this most contentious issue. Having said that and recognizing that there are very decent people on both sides of the debate, there is no gainsaying that Roe v. Wade is one of the most execrable decisions in the annals of the U.S. Supreme Court .
On January 22, 1973, Justice Harry Blackmun, writing for the majority, stated: 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.” Reasonable enough —- the problem is that speculating upon it is exactly what the court did. Indeed, it did so with such a degree of rashness and bravura that one would have thought that the courts meditations on the subtleties before it, subsequently reified into law, was the very summit of human insight and understanding.
The court ’s reasoning was hardly Solomonic when it defined, in anything but deathless prose, the mysteries of life’s beginnings: Up until 3 months, said the court, the human fetus is nothing more than a lump in the mother, as expendable as any unnatural growth. From 3- 6 months the court, with un-Thomistic precision further speculated that the fetus is something more than an appendage of the mother but declined to say exactly what they thought it was. During the last 10 weeks of a normal pregnancy cycle, the court posited that the fetus is viable; “viable” being defined here as an entity that could live apart from the mother and therefore possibly be deserving of special consideration. Does this mean that the court is prescribing constitutional protections upon the fetus during the last 10 weeks? Absolutely not; it merely states that at this juncture the state may act on behalf of that entity to proscribe abortion practices. The court then proceeded to further embarrass itself by musing on the psychological suffering involved in an unwanted pregnancy as some kind of justification rather than exercising its critical function of judicial review, interpreting the law in light of the Constitution.
The salient question, mind you, is not whether the fetus is alive; elementary embryology established that a long time ago. Life is neither a philosophical concept nor a theological dogma. It’s a biological fact. The crucial point is whether the unborn has equal value to you and me? This is a more nettlesome proposition, at least in the abstract. In a more concrete sense, I don’t know any philosophical method to cut the subtle Gordian knot as to determine at exactly what moment life has equal value. It always seemed to me that it is something greater than a matter of chronology. At whatever point you designate the fetus as having equal value, it is then necessary to know why it did not have equal value an instant earlier, going back to the point of conception. It’s impossible to distinguish that kind of viability from one moment to the next, which is principally why I’m pro-life.
Nevertheless, a slight majority of the American people disagrees with that position. The question then becomes how a democratic republic decides emotionally charged issues when a consensus does not exist. There is no controversy about the rights of the born in this country (as opposed to China and elsewhere where often female infants do not possess the metaphysical equality of male infants and hence are disposable), only with the unborn is there division of opinion. In 1973, the Supreme Court sought to settle the issue simply by denying the American people the authority at the ballot box, via their elected representatives, to protect the basic rights of an entire class many believed to be a human being.
What should have been left to the democratic process was instead determined by what Justice Byron White, one of the two dissenters in Roe’s 7-2 majority decision, called “an exercise of raw judicial power.” Even liberal jurists and law professors, who strongly favor abortion rights, noted Roe’s inelegant presumptions and its textual inexactitude as it related to the Constitution, since conclusions of the 7-2 majority are not inferable from the language of the Constitution.
The law of the land regarding abortion had sprung not from the counsels of the people, but by judicial fiat. Moreover, Roe came less than five years after Governor Ronald Reagan of California signed (a decision he later repented) the most liberal abortion law in the country. The court nevertheless nationalized an issue that should have been debated and voted upon by the voting constituencies in each state. By federalizing Roe v. Wade and then reinforcing it even more radically in Casey v. Pennsylvania, the issue became all the more polarizing as black robed jurists, unelected and virtually unimpeachable, arrogated dictatorial power unto itself.
Henceforward, the national dialogue as a consequence of Roe became more vitriolic and scarred. There have been relentless attacks by pro-abortion groups as well as endless litigation regarding measures that the majority of voters in numerous states would favor: informed consent, parental involvement in cases involving minors and making the bloodcurdling practice of partial birth abortion illegal. The impact of this decision upon our political and cultural sensibilities has been very damaging and far more wounding than if abortion laws would have remained within the jurisdiction of the states.
It has also administered a psychological wound to the national consciousness. The courts majority, try as it did, could not bottle up debate, smother disagreement and make irrelevant the technological testimony of prenatal life, photographically captured in living color, any more than Chief Justice Roger Taney could when he was the leading voice in the courts dreadful “Dred Scott” decision that determined the “negro” to have no rights a white man was not willing to recognize and made slavery, in affect, legal in all states. The national debate on abortion is loaded with the same moral gunpowder; unlike the poll tax it is neither bland nor bloodless, but is an issue that touches the deepest emotions and inflames the most profound passions.
Decisions regarding life and death are subjects that define us as a civilization as well as a civilized people; it’s too vast and too important, cuts too wide a moral swath for people donning black robes to excogitate extra-constitutionally about, much less unilaterally impose their judgments upon a considerable portion of the population that thinks otherwise. These voices were not silenced and today echo in a Grand Canyon of dissent, which were never heard more loudly than on this 40th anniversary of a chilling act of judicial license.
