Tuesday, January 19, 2010

INSTALLMENT 2: Why the Supreme Court Decision in Roe Versus Wade was Legally Incorrect and Unconstitutional

If you haven't read Installment No. 1, please click here.
Please find below the second part of an article written by Timothy J.  Once again, the stars stand for footnotes, which will be put into the series as Tim gets them sent to us.  Read on:

Installment No. 2:
In addition to this argument, the Court misinterpreted the words of Plato and Aristotle to mean that they supported abortion, when in reality they did not.  While the Court cited several examples to prove their point, all of them are subject to a good degree of skepticism.  In one of the most interesting ones, Plato spoke about ways to regulate the population and mentioned everything from encouraging temporary abstinence to sending out colonies.  The court maintained that this was one of the proofs that Plato supported abortion, but the fact is that abortion was not mentioned even implicitly in this passage.*  Clearly, the Court’s opinion of abortion in ancient Greece and Rome was unsound and ethically questionable.  After such an obvious misrepresentation of the actual historical records in just the first section of its investigation, one begins to wonder if the Court was merely ignorant, or if there were ulterior motives.

 In the area of common law, which can be explained as the collective decision and belief of previous judicial bodies, the Supreme Court concluded that it was “doubtful”* that the killing of a “quick” fetus was ever held as a crime.  To support this position, the Supreme Court relied heavily on the testimony of Cyril Means*, a pro-abortion supporter from the 1950’s and 60’s.  By placing so much confidence on an abortion advocate without balancing the opposite viewpoint, the Court violated the neutral position that it is supposed to assume in resolving any case.  This would explain why the Court’s historical probe was so weak, for in an effort to support a position that it knew went against historical fact, it was selective with the evidence and distorted facts to make it appear that its arguments were supported.

As the common law principles of the United States came largely from England, it is essential to look at that country’s view of the issue as it pertains to the unborn.  James F. Stephen has written a thorough account of English criminal law in which he notes that even before the time of the Norman Conquest of 1066, abortion was held as a crime.*  In addition, there are written statements from four of the best English authorities on common law, Bracton, Fleta, Coke, and Blackstone, that abortion was a serious crime.  Although the Court acknowledged the comments of Bracton and Fleta condemning abortion, it seemed to regard them as unimportant and continued to rely singularly on the work of Means.  With Coke, who said that abortion was a “great misprision, but no murder”, the Court took the modern understanding of this phrase, which is that “misprision” can be translated to mean “misdemeanor”.*  However, Blackstone, whose name was synonymous with law in the mid 18th century*, took a different approach and said that “misprision” could be translated to mean a grave offense that was not punishable by death, but was nonetheless very serious.*  Furthermore, Blackstone also commented that, “One who is in the womb is already born, whenever a question arises for its benefit.”*  This quote from such an influential person in common law history proves beyond a shadow of a doubt that English common law held that the unborn were persons and protected them accordingly.

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