Roe v. Wade

Many thanks for letting me come aboard! South Dakota Politics has long been one of my favorite blogs and I am grateful for the chance to be a part of it.

I agree with Dr. Blanchard that Roe v. Wade may have been one of the Supreme Court's most immoral decisions.

I respectfully disagree with his idea that the decision was constitutional. The fifth amendment says that no person shall be "deprived of life, liberty, or property, without due process of law."

I would argue, then, that, if the court rules that someone can be deprived of his life or liberty without due process, then it has made a ruling that is inconsistent with the constitution. Roe v. Wade did that.

If we say that Roe v. Wade is constitutional, can we also say that it is constitutional for the court to deprive others of their right to life, liberty or due process?

One could, of course, argue that an unborn baby is not a full person, but then, one could make that argument for someone who did not quite meet other qualifications. Someone, who, for instance, doesn't have blonde hair or blue eyes. But a person doesn't lose his personhood because someone else doesn't wish to recognize it.

Therefore, I think that Roe v. Wade is unconstitutional.

Comments

[Joe]

I agree with your basic conclusion that Roe v. Wade was wrongly decided. However, it is unlikely that a "strict constructionist"/"originalist" interpretation of the constitution allows for reading "person" as an unborn person. The original public meaning of the word person within the context of the 5th and 14th amendments would probably not have considered a fetus a person. "Person" just wouldn't have been used that way.

The important point that needs to be made by conservatives on the textual interpretation here is on the word "liberty." Pro-choice advocates state that it is a woman's liberty interest to have an abortion. However, the framers of the constitution and the citizens who ratified it would have never considered an abortion to be within the realm of "liberty." Abortion instead would be considered license. This is where we must make our stand; not on the "personhood" issue. Then, Roe can be overturned and returned to the states.

If you want to ban all abortions, as I would, Roe must be overturned with an originalist view of "liberty" first. Then, states can begin to pass sensible legislation to curtail abortions. Finally, a constituional amendment will be possible when we change enough hearts and minds to define "personhood" as beginning at the moment of conception.

[Miranda]

Thank you, Joe, for your comments.

I am not sure what the founding fathers thought of the personhood of an unborn baby. I suppose that's another one of those ambiguous subjects that Dr. Blanchard mentions. But I'm not sure that we can assume that they would not have considered an unborn person a person, nor do I think that, just because one type of person isn't specifically talked about that they do not have the same rights as others.

Suppose human cloning is possible and we end up with clones participating in society. Do we say that, because the founding fathers did not specifically mention clones that they do not have the same rights as other people or that the constitution does not protect them?

I think not - and I think an unborn baby is as much of a person as anyone else.

Nevertheless, I like your idea and will admit that it might be more readily accepted on the legal playing field than mine.

[KB]

Boy, I let someone new join my blog, and the first thing she does is start tearing holes in my argument! No good deed goes unpunished. I am joking of course. I am delighted that my friend and former student is helping fill the spiritual chasm left by the absence of my esteemed colleagues, Jason and Jon. I am doubly delighted that she has chosen to take issue with me on this question. Welcome, Miranda!

Miranda: the problem, as I see it, is this: the Constitution clearly does define rights of personhood. But it gives little indication of who, precisely, qualifies for legal personhood (someone with rights under the regime), and gives no information about moral personhood (those who have genuine rights that ought to be recognized). Are minors legal persons in the full sense, or only all adults? Are corporate bodies legal persons? Some moral thinkers would extend personhood to include animals. Others would go so far as to include inanimate objects like mountains or the global climate system. The Constitution is silent about such distinctions.

Of course, the whole point of the Constitution is to protect moral personhood, at least if you accept Harry Jaffa's argument that the Declaration lays out the goal which the Constitution is intended to achieve. I do. But for better or worse, the Constitution does not identify the Declaration or any other statement of basic moral ends as authoritative. Nor does the Declaration provide much help on the abortion question.

I think that moral logic condemns abortion for the same reason as it condemns slavery. I think that moral logic ought to guide the Supreme Court in its decisions. Roe was an atrocious decision for the same reason as Dred Scott. But neither were unconstitutional. The Court decided specific cases according to its judgment. That, unfortunately, is all the Constitution requires.

[denature]

If you create a clone, the genetic material came from a body cell, not the union of sperm and egg. Why grant constitutional protection to a zygote, but not to every other single cell in the body, which possess equal potential to develop into life?

[KB]

Denature: for the same reason you insure a house when you begin building, but not a blueprint.

[denature]

OK, but when does a house become a house? A house is more than the sum of its parts (a pile of lumber + shingles etc. doesn't = house). Life is more than the sum of its parts (DNA + cell membrane etc. doesn't = life). It's a popular refrain from anti-abortionists these days that life begins at conception because that is the point where the complete genome has been established. That particular argument doesn't hold up under scrutiny, and the bringing up of clones illustrates the weakness of defining life based on that concept. If we remove the nucleus from an egg cell and replace it with the nucleus of a skin cell and put it back in the freezer, have we really created a living organism with more rights than either of those cells had originally?

[lexrex]

miranda, we can easily know what our founders thought about unborn babies, or fetuses. they believed that they were human beings, worthy of legal protection. common law -- and years later, the positive laws of every state -- was quite clear that it was a crime to intentionally kill a fetus, after the point of quickening.

the personhood of a fetus was assumed, and was never a point worthy of discussion.

if you believe that a person is only granted rights by the state, then you might conclude that a fetus has no right to life. but if you believe, as the founders did, that a person is granted certain unalienable rights, then a fetus, an african, as well as a white european immigrant, indeed, has a right to life.

whether harry jaffa, abraham lincoln, and others were/are right about the declaration of independence mattering in such discussions -- and i'm in agreement that it does matter -- is a fun side-discussion, but it's just icing on the cake. we are all endowed with the right to life, whether positive law recognizes it or not.

and as our founders also believed -- read william blackstone -- any law contrary to the laws of nature and of nature's God is void.

kb, you say that "all the Constitution requires" is that "the Court decide specific cases according to its judgment."

i would say the constitution requires the court to decide specific cases according to the constitution.

[Joe]

I would still maintain that the best argument for the pro-life movement hinges on the original public meaning of "liberty" not "person." I sincerely doubt that those who ratified the 14th amendment in 1868 thought that the word "person" as it was used would mean a zygote/fetus. However, I have much larger doubt that they would have considered having an abortion to be within the realm of "liberty" to be protected by that amendment. Thus, the Court should have concluded that this was a matter to be decided by state legislatures.

Very good discussion above (especially the Jaffa/Lincoln comments). I would point you to this recent interview with Jaffa: http://tv.nationalreview.com/uncommonknowledge/

[lexrex]

thanks for your insight, joe. it makes sense. but i would again point out that common law prohbitions in the colonies -- and later the statutory prohbitions -- in the states against abortion are a pretty good sign of what the founders thought about fetuses.

i think sometimes we look at this backwards. sure, one could argue that the founders didn't intend to include fetuses and africans in the original meanings of the constitution. or, one could argue that if they intended not to include fetuses and africans in those meanings that they would not have said "persons," but would've said "white persons" and "born persons."

if the founders intended not to consider fetuses as persons, then their prohibitions against aborting them would've certainly seemed out of place, awkward, and just plain unconstitutional.

but again, there was no need to specify that fetuses were included in the constitution because common law -- and the Laws of Nature and of Nature's God -- already addressed the issue.

if we held to your line of reasoning, joe, one could feasibly argue that the constitution was also silent about people of asian or hispanic descent. yet i've never heard anyone argue that chinese and spanish immigrants aren't "persons." and i don't believe we've ever had any trouble enforcing laws protecting them.

[Miranda]

Lexrex: You beat me to my next argument! And why stop at one race or another? No one is specifically called a person. Therefore, if it is constitutional for the Supreme Court to permit denying the life and
liberty of one type of person (a fetus), it is also constitutional for it to allow any poster or commenter on this blog to be deprived of his.

While I'm not sure it's fair to say that the founders would have always agreed with common law, I think that if common law recognized a fetus as a person, then the argument that the founders couldn't possibly have meant for the term to include unborn babies is wrong.

Dr.Blanchard: I agree with some of what you say, but the constitution becomes nearly worthless when we assume that we cannot understand who
it is meant to apply to. If we have to wait for the Supreme Court to define "person," then we allow nine people to decide who has rights and who does not. I don't think the founders meant for that to happen.

[lexrex]

miranda, you be smart. me like.

[George Mason]

Welcome Miranda; A point to ponder: Many of the same people who have been demanding that the "Government keep their hands off my body" (the pro-abortion people) are now demanding that the government put their hands all over our
bodies(Obamacare). Another Life and Liberty issue.

[Miranda]

Thank you, lexrex and George Mason for the kind words.

George Mason: Excellent point. I would welcome input from denature or A.I on this one.

[A.I.]

A few other things to ponder:

Who was considered a person by the framers as in the 3/5's rule (not that it was a good rule)?

Lexrex notes colonial laws recognized the importance of quickening, not conception, relative to abortion. Does Roe not do pretty much the same thing?

Are "life" and "person" synonyms as in "life begins at conception"?

Have we not already ceded at least as much of our heath related decision-making ability to insurance companies as under proposed reforms?

Why would one cede the right to make reproductive decisions just because other decisions have been ceded.

[FascistSocialist]

You have to be born to have the rights enshrined in the constitution. Hypothetical and potential people do not have rights.

[Haylei]

Actually, Roe v. Wade was constitutional, the fourth amendement states "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.", notice the beginning of the sentence, it says "the right of the people to be secure in their PERSONS...", this implies the right to bodily integrity, which was the concept of Roe v. Wade, a woman's right over her own person. It is not the government's business what we do with our bodies, and it shouldn't be their business, if you say "Well, she only has to raise the child for 18 years." then you are literally justifying slavery, if a woman wants an abortion then she should be able to get one, it is her body, let her do what she wants with it. The only reason I do not like abortion itself is due to the negative psychological impact it can have on the Mother, otherwise I like the fact that it is available, it is your God-given right to do what you wish with your body. The bible actually says that if a man is married and his Wife becomes pregnant by another man, then they should get herbs from a priest to terminate the pregnancy, if you are against abortion, then don't have one. Period.

[Mary]

We now have DNA scientific proof that an unborn baby from it's earliest state is NOT "part of the woman's body" because it's DNA is different. Now trying to figure out how our forefathers thought when they wrote we were endowed by our creator with certain unalienable rights, among them being, life, liberty & the pursuit of happiness, I am almost as certain as I can be, without having been alive back then, that as soon as one could put their hand on the mother's belly & feel that baby kick, they were endowed by their creator with, "the right to life". The "miracle of birth" was thought to be one of Gods creations!

[Mary]

To Haylei, Aug 15th. Hate to shoot down your long used pathetic argument, all too often used by baby killers, a woman has a right to say no and to use (now) very many forms of birth control, to prevent a pregnancy she may not want, but with actions goes responsibilities. Unprotected sex? Pregnancy? Your problem, not a choice of yours anymore, because now with DNA, we can prove, it is NOT part of your body, like an apendix, or liver, ETC, but a genetically different human being! To all you baby killers, try thinking responsibily, before having sex! And if you're really too stupid, think ADOPTION, it's the other "A" word.

[Haylei]

Mary, adoption is not always an option due to the requirement that both parents consent to it. I don't think you understand just how broad the concept of fetal rights is. It goes much farther than abortion, it extends to the point where the government can dictate everything that happens to a woman's body simply because she is pregnant. There have been cases of forced C-sections, court-ordered blood transfusions, even compulsory bed rest. And, eventually, it becomes a question not of the rights of the fetus, but one of the rights of the Mother-to-be. If we grant fetuses the same rights as living, breathing human beings, then the "rights" of the fetus would trump her rights, and incidents like these would increase at an alarming rate. I even read about a case where a woman was jailed for being pregnant and HIV-positive.