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The following paper clearly shows that the infamous Roe v. Wade decision
does not pass secular muster, missing by a “logical order of magnitude,” let
alone the well known moral problems which take priority. The paper
concentrates specifically on the illegality of Roe v. Wade in a Constitutional
sense because it is a given that, in a Catholic context, wherein faith and right
reason are married, not divorced, with faith enabling a reason that, in turn,
reinforces the faith, we are talking about an abomination against the Law of
God to which all of man's laws are subsidiary in the moral order; else,
anarchy reigns! – Gary L. Morella
2
The Illegality of the Roe v. Wade Decision
By Colin Morella, Senior, Seton Home Study School 2007-2008
3
What is the definition of a legally correct decision? In regard to judicial decision making,
a legally correct decision is one that is made by an established judicial body based on the
contents of the Constitution, the original intent of the drafters for each section of the
Constitution, as well as established legal history and precedent. These three points are crucial in
any official decision or ruling made by a judicial body. However, this was not so in the court
case, Roe v. Wade. Introduced in a Texas district court in 1970, a pregnant woman wishing to
have an abortion brought up a suit against Texas. She claimed that the anti-abortion laws
enforced in Texas during that time were unconstitutional and violated a citizen’s right to privacy.
The court ruled in the woman’s favor in her particular case, but would not issue a command to
repeal the Texas abortion laws. The case was appealed in the United States Supreme Court,
which ultimately ruled that the anti-abortion laws were vague and violated the right to privacy
guaranteed in the Constitution. Thus, it was declared that a woman has the fundamental right to
an abortion according to the Fourteenth Amendment of the Constitution. However, according to
the definition of a legally correct decision, the Supreme Court’s ruling was erroneous. In fact,
the history of abortion, legal precedent, the true meaning of the 14th Amendment of the
Constitution, and Natural Law all support the fact that a woman does not have the right to an
abortion, and that the unborn child has a right to life. The Supreme Court decision in Roe v.
Wade was incorrect legally and constitutionally.1
1
U.S. Supreme Court, “Roe Et Al v. Wade, District Attorney of Dallas County Appeal from the United States District
Court for the Northern District of Texas No. 70-18” in “Roe v. Wade 410 U.S. 113 (1973),”
[http://www.priestsforlife.org/government/supremecourt/7301roevwade.htm], Syllabus, Blackmun’s Opinion
sections II and XII, and Mr. Justice Stewart, concurring.
4
First of all, the general history of abortion does not support a woman’s right to undergo
an abortion, and recognizes the right to life of an unborn child. However, Supreme Court Justice
Harry Blackmun, who supported the majority ruling in the Roe v. Wade case, argued that an
individual has a right to an abortion based on ancient historical attitudes towards abortion and the
Hippocratic Oath. In regard to several ancient governments, the Court claimed that abortion was
widely practiced.
For example, Blackmun stated that the laws of the Greek and Roman
governments towards abortion in ancient times were lax. They did not restrict abortion, and only
regarded it as an offense if it violated the right of the father to have children. In addition,
Blackmun claimed that ancient religions were not opposed to abortion. Also, he referred to the
ancient Hippocratic Oath, the classic ethical guide to medical practice penned by Hippocrates in
Greece in the Fourth Century B.C. Blackmun claimed that the Hippocratic Oath was not
recognized by the people. A certain section of the Oath states: “I will give no deadly medicine to
anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a
pessary to produce abortion…I will neither give a deadly drug to anybody if asked for it, nor will
I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.”
However, according to Blackmun, the Greek people did not follow this important guide to
medical practice, and instead were largely supportive of abortion.
He stated that Greek
philosophers such as Aristotle, Plato, and Socrates were in favor of abortion. Only a small group
of Greeks, the Pythagoreans, were said to have followed the Oath and to have recognized the
formation of life at conception.
The Court uses its interpretation of the history of abortion to
help justify its decision in Roe v. Wade.2
2
Ibid, Blackmun’s Opinion section VI.
5
The Supreme Court’s view on the history of abortion was flawed. The Court not only
overlooked certain historical evidence pertaining to abortion, but it also incorrectly interpreted
the evidence that it cited. First of all, the Court stated that abortion was widely accepted in
Greek and Roman societies. However, evidence shows that many significant historical figures in
both ancient Greece and Rome were not in favor of abortion. For example, the Ephesian doctor
Soranos was greatly opposed to abortion unless it was performed to save the mother’s life, and
he believed that it was a physician’s duty to uphold the right to life. The great Roman poet,
Ovid, described abortion as being an unnatural practice, and the Roman philosopher Gaius
Musonius Rufus bluntly stated that abortion was “a danger to the commonwealth.” Furthermore,
the Greek and Roman governments themselves were not wholly supportive of abortion, as the
Court claimed. Abortion was prohibited in both Sparta and Athens. Anti-abortion laws were
created in those regions by the ancient Greek lawgivers, Lycurgus and Solon. The Court also
failed to include in their view on the ancient history of abortion that abortion was a punishable
offense in Rome during the time of Caesar Augustus. During this time, abortion was punished
with exile and the seizure of belongings, and if the patient died, the individual(s) guilty of
performing the abortion were sentenced to death. From 193 A.D. to 217 A.D., the Roman
emperors Septimius Severus and Antonius Caracalla made abortion punishable by exile from the
empire. Besides this fact, the court was incorrect in its interpretation of the Greek thinkers’ view
on abortion. For example, in Plato’s writing, The Republic, he refers to a statement by the
philosopher Socrates, who indicated that a child should be disposed of if it was born to parents
who were outside a certain legal age limit for childbearing. The court viewed this as being in
favor of abortion or infanticide. However, Socrates makes no mention at all of actually killing a
child born to parents outside the age of childbearing. Socrates states that a child like this “was
6
begotten in darkness with incontinence to the common danger.” In other words, since the child
would be a flaw to the bloodline of the city, it would not receive religious rites like other
children. It would more or less be a social outcast, but nowhere does Socrates state that it should
be killed. In addition, Socrates also states that any children born with defects should be hidden
from the rest of the city. If defective children would only be hidden, it is unlikely that normal,
healthy children would be killed (infanticide) simply because their parents were not of the legal
age to have children. Socrates makes no mention of abortion, and furthermore, there is no proof
that he commends the killing of children through infanticide. In another one of Plato’s works,
The Laws, he speaks of methods of controlling population numbers. Plato never indicates using
abortion or infanticide as a means of regulating numbers, but instead, he states that colonization
of other lands is a viable solution. Though the philosopher Aristotle was not directly opposed to
abortion, he certainly did not openly commend it, as the Court claimed. In Aristotle’s Politics,
he indicates that abortion should be used only as means to achieve a goal of the state and not to
be used as a personal liberty. He also states that abortion cannot be used after animation of the
unborn child; a way of preventing conception should be used instead of abortion as a means of
regulating population; and abortion should be used in place of infanticide as a means of
regulating population. Again, though Aristotle was not completely against abortion, he clearly
did not view it as an act that could be performed without scruple. He saw it as a last resort to
population control, and did not believe that it was a personal liberty. In addition to wrongly
interpreting these ancient views on abortion, the Supreme Court did not mention several other
ancient civilizations that were against abortion.
According to the Code of Hammurabi in
Babylon in 1727 and 1728 B.C., an individual found guilty of causing a pregnant woman to
miscarry would be fined, but if the woman died, the offender’s daughter would be put to death.
7
In the Twelfth Century B.C., the King of Assyria, Tiglath-Pileser I, made it a crime for a
pregnant woman to cause herself to miscarry. If she was found guilty of this, she would be
sentenced to death. The ancient Jews only allowed abortion in order to save the life of the
mother. Otherwise, abortion was punishable by death according to Jewish law. Thus, contrary
to the court’s view on ancient attitudes towards abortion, it cannot be stated that many societies
commended abortion. Evidence shows that laws criminalizing abortion were not just recent, but
had been implemented by many ancient societies. The court should have taken into account that
many civilizations throughout time were not totally supportive of abortion, and did not view it as
a wholesome act.
Historical evidence shows that a child has a right to life.3
Secondly, legal precedent does not support a woman’s right to an abortion, and
recognizes the right to life of the unborn child. However, the court majority in Roe v. Wade
argued that common law, as well as both American and English statutory law supported the right
to have an abortion. Blackmun states that common law never officially regarded abortion as a
criminal offense.4
The Court said that the writings of the English jurists, Edward Coke and
William Blackstone, stated that abortion was not murder, but rather a type of misdemeanor. 5 In
addition, the Court claims that common law precedents do not even regard the abortion of a
quickened fetus as a crime.6 The Court also supported its decision to legalize abortion with its
review of English statutory law, which only regarded post-quickened abortion as a capital
3
Stephen M. Krason and William B. Hollberg, The Law and History of Abortion: The Supreme Court Refuted, 1984,
2-5.
4
U.S. Supreme Court, “Roe v. Wade, 410 U.S. 113 (1973),” Blackmun’s Opinion section VI.
5
Ibid.
6
Ibid.
8
offense and pre-quickened abortion as a felony in the Lord Ellenborough’s Act of 1803.7
Though this law is anti-abortion, the court regards it as one of the first times that abortion was
criminalized, most likely because it was a dangerous procedure for the woman.8 According to
Blackmun, abortion had previously been allowed for thousands of years. He believed that it was
widely accepted by society.9 The American laws in the Nineteenth century were nearly identical
to the English statutory law, making the abortion of a quickened fetus manslaughter and the
abortion of a pre-quickened fetus a misdemeanor.10 However, throughout the 1800’s and up
until the 1950’s, most states enacted legislation that equally punished any abortion, except in
some instances to preserve the life of the mother.11 The Court stated that American legislation
against abortion only came into effect after the Civil War, and it was only meant to protect the
health of the woman.12 Only three states allowed abortions that were not illegally carried out.13
Thus, the legislation of the American states was stricter towards abortion than the common law,
which was originally adopted in the United States. The Court’s opinion is that at the time of the
signing of the Constitution, as well as throughout the 1800’s, the government had a more lenient
view towards abortion.
Before legislation, a woman had a better chance to terminate her
pregnancy since it was only a major offense if the unborn child was animated.
7
Ibid.
8
Robert Woodward and Scott Armstrong, The Brethren (New York, NY: Simon and Schuster, 1979), 183.
9
Ibid.
10
U.S. Supreme Court, “Roe v. Wade, 410 U.S. 113 (1973),” Blackmun’s Opinion section VI.
11
Krason and Hollberg, 9.
12
Ibid.
13
U.S. Supreme Court, “Roe v. Wade, 410 U.S. 113 (1973),” Blackmun’s Opinion section VI.
9
The Court was wrong in its interpretation of common law. According to the Court,
abortion was never truly recognized as a crime in common law whether the unborn child was
quickened or pre-quickened. The Court had based its analysis partly on the apparent views of
several early English jurists, and partly the studies of Professor Cyril Means, who cited several
different abortion cases in England to show that abortion was allowed by common law. 14 In
regard to the English jurists, the Court cites Edward Coke. In his writing, Third Institute, Coke
states that if a child is killed in the womb, it is a “great misprision,” but if the child is born and
then killed, it is murder.15 The Court interpreted the term, misprision, as merely being a type of
misdemeanor.
However, in his work, The Commentaries on the Laws of England, which
illustrated common law in 18th Century England, William Blackstone defines a misprision as
being an extremely serious crime that is nearly as grave as a capital offense.16 Thus, it is clear
that abortion was treated as a very grave crime according to common law. Furthermore, in
Blackstone’s book, On the Rights of Persons, which is part of his Commentaries, it is stated that
an unborn child has a legal right to life.17 Two other analysts of English common law, Fleta and
Bracton, agreed that abortion was a form of homicide.18 The Court erred in overlooking these
facts, and based its own views on the abortion cases analyzed by Cyril Means. 19 One of these
cases, The Abortionist’s Case in 1348, involved an individual who was convicted of killing an
14
Krason and Hollberg, 5.
15
Ibid, 6.
16
Sir William Blackstone, Book the Fourth in Commentaries on the Laws of England Volume II (Philadelphia: J.B.
Lippincott Company, 1908), 119
17
Krason and Hollberg, 7.
18
Ibid.
19
Ibid, 5.
10
unborn child within its mother. However, he was not placed under arrest because the child did
not have a baptismal name, and there was no way to tell if this individual had really killed the
child.20 However, Robert Byrn, a critic of Means, noted that if abortion was allowed according
to common law, the offender never would have been convicted in the first place.21 The only
reason that the case was dismissed is because it was necessary for the child to have a baptismal
name, and there was no evidence that the offender had indeed killed the child.22 Another case
involved a man who had beaten a pregnant mother. The mother gave birth to her child, but the
infant was bruised and died shortly afterwards.23 The court case stated that if the child was born
dead, the offender would not be convicted of murder because there would be no way to prove
that the offender caused the unborn child to die.24 It would be murder only if the child died after
being born, with injuries on its body to prove that the beating was the cause of death. 25 The
Supreme Court uses this to justify its claim that abortion was allowed, but again, the reason why
there was no indictment was because the cause of death of the unborn child could not be proven.
There is also no statement in the case that prohibits the court from convicting an offender if the
child died before it was born, so the Supreme Court cannot use this case at all to support its claim
that abortion was a free liberty according to common law. In regard to lawmaking in preRevolutionary War America, the Common Council of New York City created a law in 1716
20
Ibid, 6.
21
Ibid.
22
Ibid.
23
Ibid, 7.
24
Ibid.
25
Ibid.
11
which made it a criminal act for midwives to help pregnant women have an abortion.26 Thus, not
only did common law regulate abortion, but also, at least in the state of New York, additional
legislation was passed to forbid it. The law did not state anything about abortion of a prequickened child, or an animated child, indicating that abortion of a pregnant woman’s child at
any time was punishable.27 Another interesting fact to note is that this New York law was
derived from common law legislation in England.28 In conclusion, the court cannot state that
common law openly and freely allowed pregnant woman to have abortions without scruple.
The Supreme Court was wrong in its interpretation of English statutory law and
American laws regarding abortion. It has already been proven through the study of ancient
history and common law that abortion, in fact, was not completely accepted in society up until
the Nineteenth century as claimed by Justice Blackmun. Thus, he cannot justify his claim that
the Lord Ellenborough’s Act of 1803 was the first law enacted that made abortion a criminal act.
In addition to this, the Court statement that legislation in America against abortion didn’t come
until after the War Between the States, and its concurrent claim that it was only meant to protect
the mother’s health is equally erroneous. Attorney Eugene Quay wrote an appendix that lists all
laws regarding abortion in the United States before 1960.29 This appendix reveals that thirty-one
states had enacted laws against abortion before the start of the Civil War.30 Furthermore, there
was a larger amount of legislation regarding abortion just after 1827, the year in which scientists
26
Ibid, 8.
27
Ibid.
28
Ibid.
29
Ibid, 9.
30
Ibid.
12
discovered the ovum.31 This suggests that the American government at that time was more
concerned with preserving the life of the unborn child.
Nevertheless, the Court based its
assumption that these anti-abortion laws were only meant to protect the woman rather than the
fetus in several previous court cases. First of all, there was the State v. Murphy case regarding a
New Jersey abortion statute in 1858.32 The case did state that the “health and life” of the mother
should be protected, so the Supreme Court was right in its claim that the abortion legislation in
question in this case was meant to protect the woman.33 However, the case stated that the
performing of an abortion “was purged of its criminality, as far as it affected the mother, by her
consent. It was an offense only against the life of the child.” 34 It made it clear that an attempt of
a woman to have an abortion had not been an offense in regard to her, but rather in regard to the
life of her child.35 This proves that the protection of the unborn child was also a major concern,
not just the protection of the mother, as the Supreme Court believed. The Court also based its
opinion that statutes were solely meant to protect the mother’s life on the Smith v. State case of
Maine in 1851.36 In this case, the state court clarified that a woman could be convicted if she
caused herself to have an abortion or if someone causes her to miscarry.37 Causing herself to
miscarry would be considered a criminal act if meant to injure the unborn child.38 The state
31
Ibid.
32
Ibid.
33
Ibid, 10.
34
James Bascom, “Roe vs. Wade: A Break from Legal History,” [http://www.montfortacademy.edu/essay09.htm].
35
Krason and Hollberg, 10.
36
Ibid.
37
Ibid.
38
Ibid.
13
court in this case went on to say that anyone would be convicted if they attempted to cause a
woman to abort her child.39 The state court is asserting that the harm done to the child is the
crime here, not harm done to the mother, as the Supreme Court claims. Also, in this specific
case, a pregnant woman died as a result of a procedure to abort her child.40 However, the death
of the mother is not considered in this case because her death was not an intentional result. Only
the abortion and harm done to the child is considered in the Maine statute that is in question in
this case. In addition, there was the In re Vince case of 1949 regarding a New Jersey statute
against abortion. The Supreme Court believed that this statute was meant to protect the mother
because it did not allow for a woman to be prosecuted if she conspired to have an abortion.41
Nevertheless, the In re Vince court stated that if the child is quickened, and the mother is found
guilty of causing herself to have an abortion or allowing another to perform it, she could be
prosecuted.42 Though the statute applied only to a quickened fetus, it was still concerned with
the life of the child since the mother could be prosecuted for aborting it. These statutes and cases
give evidence that abortion was condemned by law through the Nineteenth Century up until the
time of Roe v. Wade.
The Supreme Court also based its ruling in Roe v. Wade on the fact that American law
did not recognize an unborn child as a true person. First of all, it must be acknowledged that it is
a biological fact that human life begins at conception.43 Medical studies in the mid to late 20th
39
Ibid.
40
Ibid.
41
Ibid.
42
Ibid.
43
Edward Robinson, “Fetal Life and Abortion: Human Personhood at Conception,”
[http://www.unbornperson.org/section_2.htm].
14
century later confirmed the presence of human life at conception. When the Senate considered
the Human Life Bill in 1981, a number of prominent professors testified to this fact based on
their previous scientific studies.44 Next, there are a number of laws and court cases that disprove
the claim that the personhood of the unborn child was not legally recognized. First of all, there is
tort law, which allows for a person or party to be rewarded for damages as a result of a civil
offense.45 The Supreme Court based its opinion that an unborn child was not recognized as a
person by the tort law.46 However, by the time of the court case, Allaire v. St. Luke’s Hospital,
in 1896, it had been proven by modern medical studies that the unborn child was, in fact, a
separate person from the mother.47 In this particular case, a young boy sued a hospital for injuries
he received when his mother was hurt at the hospital while she was pregnant with him. 48 Since
the child was another person, he would legally have to be recognized as such by the law. In the
case Bombrest v. Kotzin in 1946, the court stated that according to medical science, the child
must be recognized as another person and not as a part of the mother’s body, and that damages
could be recovered for any harm done to the child while it is within its mother’s womb. 49 This
interpretation of the personhood of an unborn child was subsequently used in nearly every court
44
Randy Alcorn, “Scientists Attest To Life Beginning At Conception,”
[http://www.epm.org/articles/life_conception.html].
45
Cornell Law School, “Tort,” in “Wex Legal Dictionary,” [http://topics.law.cornell.edu/wex/tort].
46
Krason and Hollberg, 12.
47
Ibid, 11.
48
The New York Times, “Alleges Injury Before Birth: Hospital Where a Boy's Mother Was Hurt Sued for $50,000,” 5
December 1896, final edition, The New York Times Archives,
[http://query.nytimes.com/gst/abstract.html?res=9A06E0D9103BEE33A25756C0A9649D94679ED7CF].
49
Krason and Hollberg, 12.
15
jurisdiction that had denied the right of obtaining restitution for harm done to an unborn child.50
In fact, thirty jurisdictions allowed for recovery by the time of Roe v. Wade.51 The Supreme
Court went on to say that the unborn child must be born alive in order for a recovery of any harm
done during pregnancy.52 However, before Roe v. Wade, the law in sixteen states allowed the
parents to bring a wrongful death claim if the unborn child was injured in some way and died in
the womb.53 The fact that the parents could make a lawsuit for the death of the child indicates
that the child was indeed recognized as a person by the law. If the child was not a person in the
first place, then it could not have died. In addition to tort law, an unborn child was recognized as
a person by property law. A child that was not yet born could be included in its father’s will and
benefit from a trust following the father’s death, whether it was born or still in the womb.54 In
the New York case In re Holthausen’s Will of 1941, the court stated that in regard to property
inheritance, an unborn child was considered a living person.55 Finally, child support laws in the
United States prove that the unborn child was legally recognized as a person. Court decisions
regarding child support laws show that an unborn child had the same right to receive child
support payments as a born child did.56 In the Colorado case, Metzger v. People, the court
required that a father devote a fixed percentage of his salary to the support of his child that was
50
Ibid.
51
Ibid.
52
Ibid.
53
Ibid.
54
Ibid.
55
Ibid.
56
Ibid, 13.
16
yet to be born.57 In the California case, Kyne v. Kyne, the court ruled that an unborn child was
entitled to have a legal guardian (in this case, its paternal father), and receive child support
payments.58 Thus, it can be proved that an unborn child was in fact legally regarded as a true,
living person by the American government prior to Roe v. Wade. Contrary to the Supreme
Court’s belief that anti-abortion laws were quite recent, legal precedent shows that abortion of
the unborn was criminalized for hundreds of years up to the Nineteenth and Twentieth Centuries.
If the Supreme Court had realized that abortion was not completely allowed in England and
America, as previously cited, and that the fetus was in fact a person, it would have been much
more inclined to secure the legal rights of the unborn child of the pregnant woman in Roe v.
Wade.
Thirdly, the Constitution and the Fourteenth Amendment do not support a woman’s right
to have an abortion, and recognize the right to life of the unborn child. However, the Supreme
Court in Roe v. Wade argued that the Constitution, as well as the so called “right to privacy”
included in it, gave women the freedom to procure abortions.59 The Fourteenth Amendment
states: “All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”60
57
Ibid.
58
Ibid.
59
Ibid.
60
James Madison, “The United States Constitution, Amendment 14”
[http://www.usconstitution.net/const.html#Am14].
17
The Court holds that this gives the citizen a right to privacy, even though no such right is ever
mentioned, and that this right is general enough to give a mother the liberty to abort her child. 61
Based on a number of past court cases, the Court determined that this right to privacy included
marriage activities such as procreation, contraception, support and education of children, family
relationships, and hence, abortion.62 In addition, the Court does not believe that the rights
granted throughout the Constitution apply to pre-natal life because the unborn cannot be
considered a true person.63 The Court holds that if the unborn child is not a person, it cannot
benefit from the rights guaranteed in the Constitution.
The Supreme Court was wrong in its interpretation of the Constitution and the Fourteenth
Amendment regarding abortion. First of all, it must be noted that in the Preamble of the
Constitution, it is stated: “We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote
the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain
and establish this Constitution for the United States of America.64 The term, “posterity,” refers
to all descendents, and there is no mentioned exclusion of the unborn. Thus, it was the drafters’
intent that all of the rights contained within the Constitution also apply to the unborn according
to the Preamble. At the time of the adoption of the Constitution, the unborn fetus within the
mother was considered to be a person.65 However, the Supreme Court states that the rights
61
U.S. Supreme Court, “Roe v. Wade, 410 U.S. 113 (1973),” Blackmun’s Opinion section VIII.
62
Ibid.
63
Ibid, Blackmun’s Opinion section IX.
64
Madison, “United States Constitution, Preamble.”
65
Krason and Hollberg, 13.
18
contained anywhere in the Constitution do not apply to the unborn. The Court justifies its claim
through several articles and provisions contained in the Constitution. For example, the Court
cites Article I, Section 2, which states: “No Person shall be a Representative who shall not have
attained to the Age of twenty five Years, and been seven Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”66
Obviously an unborn child cannot hold a political office in Congress, but neither can anyone
under the age of twenty-five. If the Court used this to deny the status of a person to the unborn,
then it would also have to deny the status of a person to everyone under twenty-five years of
age.67 The Court also cites the extradition provisions as denying legal personhood to the unborn.
These provisions state: “A Person charged in any State with Treason, Felony, or other Crime,
who shall flee from Justice, and be found in another State, shall on demand of the executive
Authority of the State from which he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime.”68 However, according to common law, a person under the age of
seven is not able to commit a crime because he would not yet have reached the age of reason. 69
An unborn child has also not reached the age of reason and cannot commit a crime. Thus, by
using this to defend its decision, the Court would be denying personhood to all children less than
seven years of age. The Court cannot make use of such Constitutional provisions to claim that
the document did not extend protection to the unborn. Justice Blackman claims that the term,
66
Madison, “United States Constitution, Article I: Section 2.”
67
Krason and Hollberg, 13.
68
Madison, “United States Constitution, Article IV: Section 2.”
69
Krason and Hollberg, 13.
19
“person,” in the Constitution does not refer to the unborn.70 He is wrongly using this general
term by restricting it only to citizens who have already been born. According to a previous
Supreme Court Justice, John Marshall, any word or term in the Constitution that can apply to
many different things cannot be restricted in meaning so that it pertains to only a select number
of things.71 Everywhere in the Constitution, the term, “person” applies to all, born and unborn
alike.72 There are no words, statements, or phrases that indicate that the unborn do not have the
same rights. The state legislation against abortion followed this correct interpretation of the
meaning of a person in the Constitution. In regard to the Fourteenth Amendment, the dissenting
justice, William Rehnquist, reveals that there were thirty-six anti-abortion laws enforced by
states at the time of the ratification of the Fourteenth Amendment. 73 In addition, all but five of
the states that approved the Fourteenth Amendment had statutes against abortion.74 Furthermore,
there was additional legislation regarding abortion around the time of the adoption of the
Fourteenth Amendment. For example in 1873, Congress created the Act for the Suppression of
trade in and Circulation of Obscene Literature and Articles of Immoral Use.75 This act outlawed
any sort of distribution of “an article or medicine for the prevention of conception or for causing
70
Clifford Stevens, “The Rights of the Unborn from Common Law to Constitutional Law,”
[http://www.priestsforlife.org/government/stevens3.htm].
71
Ibid.
72
Ibid.
73
Krason and Hollberg, 14.
74
Ibid.
75
The New York Times, “Obscene Literature: Text of the Bill for Suppressing the Trade,” 28 February 1873, final
edition, The New York Times Archives,
[http://query.nytimes.com/gst/abstract.html?res=9E01E5DA1630E336A0575BC2A9649C946290D7CF].
20
abortion.”76 Specifically, the act made it illegal to provide items for an unlawful abortion
according to the criminal abortion laws of each individual state.77 This shows that abortion was
condemned not just on a state level, but also on the federal level, and that the United States
government was interested in preserving the life of the unborn.
It further indicates that the
drafters of the Fourteenth Amendment were interested in securing the rights of the unborn.
Unfortunately, the Court went on to say in the Roe v. Wade case that there was no previous court
case that could be used to show that the unborn child is protected in the Fourteenth
Amendment.78 However, the Court omitted the crucial Steinburg v. Brown case from 1970,
which involved the protection of a fetus.79 The case states that the clause in the Fourteenth
Amendment, “no person shall be deprived of life without due process of the law,” supersedes the
fact that the same amendment implies a right to privacy. 80 Many of the cases that the Supreme
Court did use to show that a right to privacy in the Constitution allowed abortion actually had
absolutely nothing to do with abortion at all.81 In all sense, such cases could not be used to come
to the conclusion that abortion was included in a right to privacy. Another example of evidence
that supports the conclusion that this amendment protected the unborn was the criminalization of
abortion in the territories of Arizona, Colorado, Idaho, Montana, and Nevada in the 1860’s.82
76
Ibid.
77
Krason and Hollberg, 14.
78
Ibid.
79
Ibid.
80
Ibid.
81
Ibid, 15.
82
Ibid, 14.
21
The laws criminalizing abortion in those territories had to be approved by Congress. 83 Many of
the same Congressmen who voted for these laws also voted for the addition of the Fourteenth
Amendment to the Constitution, thus implying that the drafters of this amendment intended for
the rights to include the unborn.84 Yet another reason why abortion could not be included in a
right to privacy is the fact that the procedure is not private at all. As pointed out by Dean Joseph
O’Meara of the Notre Dame Law School from his 1975 book, Abortion: The Court Decides a
Non-Case, an abortion in a hospital or clinic is a public, and not a private matter. Doctors,
nurses, and staff are implicated in the procedure, and a record of the procedure is kept. 85 If the
Supreme Court sought to annul the anti-abortion laws, it would have to find the basis for this in
the Constitution, and the common law, which it was founded upon. 86 However, this cannot be
accomplished, because both common law and the provisions in the Constitution provide for the
security of the unborn.
Fourthly, Natural Law supports the unborn child’s right to life. Natural Law is the God
given law instilled in every man at birth. As stated by St. Thomas Aquinas, the Natural Law is
“nothing else than the natural creature’s participation in the eternal law.”87 It is the set principles
of right and wrong in reality that can be determined through one’s God given reason. 88.
Countless civilizations, including those who did not even benefit from the Revelation of God,
83
Ibid.
84
Ibid.
85
Ibid, 15.
86
Stevens.
87
James Fox, “The Natural Law” in “The Catholic Encyclopedia,” [http://www.newadvent.org/cathen/09076a.htm].
88
Anne W. Carroll, Following Christ in the World (Front Royal, VA: Seton Press, 1995), 34.
22
have held certain moral standards, recognizing that actions such as murder, theft, and adultery,
are intrinsically evil actions. The notion that such actions are wrong comes from the moral order
of God, and this moral order is a key part of human reason.89 Because it is an order given to man
by God for his common good, it is a real law, and is the basis for all other laws made by man. 90
This God given reason naturally given to each man should be his moral guide in life. However,
because the Supreme Court did not recognize the unborn child as a true person, it did not believe
that it had a right to life, as based on the Natural Law.91 Nevertheless, it has already been proven
that life begins at conception, and that the unborn is indeed a true person. According to Natural
Law, it is wrong to kill an innocent person. In addition to the fact that abortion of the unborn is
murder, man’s God given reason reveals that it also goes against the natural way in which God
intended the world to function. The union between a man and a woman in marriage, followed by
pregnancy and the subsequent procreation of children is the natural process through which God
intended new human beings to be brought into the world. From the very moment of conception,
the child possesses its own unique DNA that makes it genetically distinct it from its parents.92
Over a nine-month period, the body of the mother sustains the child as it grows within her
womb.93 However, the man-made act of abortion abruptly and violently puts an end to this
89
Ibid.
90
Fox.
91
Krason and Hollberg, 9.
92
Carroll, 62.
93
Ibid.
23
natural process, and severely frustrates the way in which God intended His Creation to
function.94 Abortion violates the Natural Law of God.
The decision of the Supreme Court in Roe v. Wade to legalize abortion was neither just,
nor legally correct, for it violated the facts of history, previous legal decisions, the Constitution,
and Natural Law. Contrary to the Court’s claims, the act of abortion was not widely accepted
throughout the ancient civilizations as Justice Blackmun claimed. From Greece to the Middle
East, many ancient peoples recognized the immorality of abortion, and sought to limit it within
their cultures. Furthermore, both the common law and statutory law practiced in early England
and America show that these Western governments, and those who practiced law within them,
recognized that the unborn deserved a right to life, and sought to ensure their security.
Correspondingly, medical research indeed shows that the unborn fetus is a true person at
conception, and should be granted the rights guaranteed to a person. The Constitution itself, the
supreme law of the United States, ensures life and security to all of its citizens, including its
“posterity,” with no exception for the unborn. Finally, the Natural Law, the reason infused in
every man by God to distinguish between what is right and what is wrong, and the source of all
other laws, reveals that abortion is not only murder, but also disrupts the natural way in which
the Creator intended the world to function.
The Supreme Court, whether deliberately or
unintentionally, not only ignored these facts, but also misinterpreted the evidence that it used to
defend its individualistic decision that there is a right to abortion. It failed to make a legally
correct decision. In truth, the evidence shows that the woman does not have the right to
terminate the life of her unborn child, and that the child has the same right to life as any other
living person.
94
Ibid, 63.
24
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