INSTALLMENT 5 (Last Installment): Why the Supreme Court Decision in Roe Versus Wade Was Legally Incorrect and Unconstitutional

If you have not read the earlier installments, here's Installment 1, here's Installment 2 , here's Installment 3 and here is Installment 4.

INSTALLMENT 5

Throughout the years, many court decisions have held that the 14^th Amendment contains a right to privacy by an individual over his or her actions, though it is disputed just how far this extends.  In Roe versus Wade, the Supreme Court held that this right to privacy was broad enough to encompass a woman’s right to terminate her pregnancy if she so chose.  However, in all the cases the Court cited as evidence of this right, only a few came close to having anything to do with abortion and it becomes obvious, with only a little explanation, that they were a bad fit for the 1973 case.  Most were cases completely unrelated to abortion and involved phone taps, the right of parents to direct the education of their children, minors selling goods, and other things that only established the existence of a right to privacy, but proved nothing about the right to the termination of a pregnancy being contained therein.  However, while the Court failed to convincingly prove its position, there is definite evidence that an unborn child’s right to life had recognized preference over the right to privacy.  In the Union Pacific Railway Company v. Botsford case (1891), the question at hand was whether a court could “order a woman suing a railway company for injuries she suffered to submit to a surgical examination”.  The Court held that such an intrusion of privacy was forbidden, except “to ascertain whether a woman convicted of a capital crime was quick with child…in order to guard against the taking of the life of an unborn child for the crime of the mother”^. In conclusion, the Court ignored the clear evidence of the right of a child to life, and was forced, because of lack of proof for its position, to present information that was not even related to the point it was trying to make.

Despite all the blunders of the Court legally and Constitutionally in Roe versus Wade, perhaps the worst was the complete lack of discussion in the critical area of natural law and what it says about abortion.  Natural law is an essential basis when dealing with any issue of morality, for it is defined by the Catholic Encyclopedia as, “the rule of conduct which is prescribed to us by the Creator". In other words, every man’s soul has been endowed with an intrinsic knowledge of what is morally right and wrong according to the eternal laws of God, so one can intuitively know what is just.  If the Court had looked at natural law, it would have understood that abortion and its decision were violating several important principles.  To begin with, natural law teaches that one does not take the life of another living human being.  Although the Court believed that life did not truly begin until birth, they were still toying, however, with the “potentiality” of life before birth and according to St. Thomas Aquinas, “if a man could be probably alive or probably dead, you can’t take the chance of burying him unless he is certainly dead. This meant that since it was questionable as to when life began, therefore the Court could not legalize the killing of the unborn because there was potential human life.  In addition to this, natural law holds that one does not interrupt a normal function of life, pregnancy, except for an extremely serious reason.  That an unborn child can be killed simply because it may not be wanted is obviously not a serious enough reason to make abortion in accord with the natural law.

 Truly, it is highly evident that the Supreme Court was not legally correct or in accord with the intentions of the Constitution in its ruling of Roe versus Wade.  Because the Court did not rule from a neutral position, but twisted facts out of context, was selective with the evidence, ignored key points of view, and knowingly evaded the clear truth, it rendered its judgment subject to intense criticism.  Had the Court honestly, critically, and thoroughly examined all sides of the issue, its decision would have been much different than it was.  Sadly, for some, the Supreme Court’s monumental decision on that fateful day in 1973 will be seen as the indisputable law of the land, but it is hoped that these articles (based on a paper I wrote for a class) have placed doubt in some minds as to the legality and fairness of the trial that the most vulnerable citizens of the United States of America received. ---- Timothy J.

INSTALLMENT 4: Why the Supreme Court Decision in Roe Versus Wade Was Legally Incorrect and Unconstitutional

FINALLY ... Installment 4 of Tim J.'s article on the infamous Roe v. Wade decision.  If you have not read the earlier installments, here's Installment 1, here's Installment 2 and here is Installment 3.  Prepare to be edified!

INSTALLMENT 4:

After blatantly skipping over the framers’ intent, the Supreme Court investigated the issue of whether the unborn were considered people according to the use of the word ‘person” in the Constitution, and ultimately decided that they were not.  Because “the Constitution does not define “person” in so many words”, the Court was forced to piece together a definition based on the many uses of the word throughout the document, a process that was doomed to failure since the Court had not bothered to discover what the original intent of the framers was.  In searching for the word “person”, the Court found most of the uses of the word in the qualifications for holding a public office, and concluded that since these uses applied only after birth, the unborn were not people according to the Constitution.  Although these qualifications for public office would ban the unborn, they also would deny any born person who could not meet the requirements for age, residency, and citizenship.  Surely, the Court would not withdraw the rights of personhood from any citizen simply for not meeting these qualifications, but yet this was exactly what the Supreme Court did in the case of the unborn.  By holding that the unborn were not people under the Constitution, the Court went against what John Marshall, a previous Chief Justice of the Supreme Court, had ruled in Gibbons versus Ogden in 1824, which was that “the terms in the Constitution must be interpreted expansively, not restrictively”.  Thus, it is only too clear that the Court’s laughable approach to the Constitutional issue of personhood was indicative of the fact that the Court had already made its decision regardless of the evidence.

When the Supreme Court examined the Constitution, it focused largely on the 14^th Amendment, which has a clause that states, “…nor shall any State deprive any person of life, liberty, or happiness without the due process of law.”  After little deliberation, the Court took the position that the 14^th Amendment banned the unborn child from the rights enjoyed under this amendment by people already born.  However, this stance was based only on a selective collection of previous court decisions and the Court’s own judgment, not on the all-important intent of the framers of the 14^th Amendment.  Around the time of the drafting of the amendment in 1868, there were several influential facts and court cases that suggest that the unborn was indeed intended to have rights.  For instance, in the 1860’s, five U.S. territories enacted anti-abortion laws.  Since these territories were not yet states, Congress needed to approve these laws, and so, in order for them to pass, many of the Congressmen who would eventually write the 14^th Amendment must have voted in their favor.  Also, in 1873, just five years after the enactment of the 14^th Amendment, the District of Columbia recognized abortion as illegal.  Again, one can see that Congress must have had a pro-life mentality, for it had full jurisdiction in the area of the District of Columbia’s criminal law.  Thus, it is apparent that the Court was incorrect in their claim that the 14^th Amendment barred the unborn from the basic human right to life, when the prevailing attitude of even the country’s political leaders in the 1860’s can be reasonably ascertained to have been for extending rights to a fetus.

INSTALLMENT 3: 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

If you haven't read Installment No. 2, please click here

Please find below the third 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:

As the Supreme Court was inaccurate and biased with its interpretation of English common law, it also did not obtain the correct view of early American law.  According to the official case document, most restrictive abortion legislation began appearing after the Civil War and was only for the purpose of protecting the interests and health of the mother.  For evidence of the first claim, the Court mentioned Eugene Quay, who had written an appendix of all the abortion legislation passed before 1960.  Interestingly enough, the very proof that the Courts recommended for their position was the thing that disproved their assertion, as Quay had on record that thirty-one of the states had laws punishing abortive practices before the Civil War even started.*  This was not the scarce minority of laws that the Court had claimed existed prior to 1860.  With regard to the second claim, that the laws enacted were solely for the protection of the woman, this too is easily refuted by the fact that the evidence the Court cited works against such claims.   For example, one of the cases the Court used was an 1858 New Jersey case, State v. Murphy, which has a passage that reads “the procuring of an abortion, or an attempt to procure an abortion, with the assent of the woman, was not an indictable offense, as it affected her, but only as it affected the life of the fetus”.* This passage clearly demonstrates that the protection of the mother was not the only legitimate interest at stake, but, yet, this was the case the Court cited as evidence that American law of the 18th century did not protect the interests of the unborn child.   One must therefore conclude that the Court purposely flipped critical information on early American law and relied on a mass of legal language to keep the real truth from emerging.

By now, one should see how the Court knowingly went against the evidence of established historical and legal precedent, but it can also be ascertained that the Court went against the intentions of the United States Constitution as well.  In its examination of the Constitution as a whole, the Court did not once touch upon the critical area of the original intent of the framers of the Constitution, thus making its judgment legally incorrect.  If the Supreme Court had been looking to resolve Roe versus Wade in the most accurate manner possible, then it most definitely would have looked into the framers’ intent, for there is no better way of discerning how the Constitution should be interpreted.  Accordingly, there were several indications about what abortion mentalities were accepted around the time of the drafting of the Constitution.  First of all, two previously cited sources have held that Blackstone and his pro-life principles were well known and accepted by the American people, including the framers of the Constitution.*  Also, by looking in a popular dictionary of the times, a fetus was described as a child, who was in turn described as a living person.*   Finally, Thomas Jefferson, who was one of the leading politicians of his day, wrote a letter praising the man who had drafted a model penal code for Louisiana that included a prohibition of abortion.  There was no record of Jefferson abstaining from expressing his approval of any part of the code and the fact that this statute became so popular was evidence that the majority of the informed public agreed with it.*  Thus, at the time of the framing of the Constitution, it can be ascertained, with a high degree of certainty, that many Americans, including the original drafters, would not have had an abortion mentality. 

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.

INSTALLMENT 1: Why the Supreme Court Decision in Roe Versus Wade was Legally Incorrect and Unconstitutional

Please find below the first part in an article written by Timothy J.  You will find this timely, since many of us are all headed to D.C. for the March for Life on January 22.  Here's your history lesson, so you can go armed with all the information you could possibly need to defend the pro-life position.  The stars stand for footnotes, which will be put into the series as Tim gets them sent to us.  Thanks, Tim!  Fantastic job on this series.  Without further ado ...

Installment No. 1:

Regardless of what side one takes on the issue of abortion, it is obvious that the decision made by the Supreme Court on January 22, 1973 in the case of Roe versus Wade, which legalized abortion during all three trimesters of pregnancy, was of historic proportions.  As notable as this case was, it is now quite clear that Roe versus Wade was fatally flawed, being both legally incorrect* and unconstitutional in a myriad of ways.  Although the justices who presided over the case were able to conceal their biased reasoning to the untrained eyes and ears of the general public, further research reveals gaping holes in their assertions and the proof they cited as evidence of these.  Thus, the aim of this research report will be to expose the main areas of Roe versus Wade’s problems and ultimately provide reasons why this case was neither legally correct nor in accord with the Constitution of this great land.

The Supreme Court’s investigation into Roe versus Wade started by looking at the history of abortion in ancient times.  After only a brief investigation, the Court concluded that “ancient religion did not bar abortion”*. However, the Supreme Court looked mostly at Greek and Roman history for evidence of the acceptance of this practice.  Yet, abortion concerned more than just the Greeks and Romans and interestingly enough, the first legal evidence of abortion appeared much further back in history than these civilizations with a reference in the Babylonian Code of Hammurabi, which appeared in about 1728 B.C.  This reference spoke of the penalties pertaining to a person who “unintentionally but culpably caused a woman to miscarry”.*   Thus, the first ever-recorded reference to abortion does not infer its approval, but rather the penalties for such an act.  It must be further noted that substantial evidence exists that many other ancient civilizations, besides the Babylonians, clearly had an anti-abortion mentality, among which were the Assyrians, Egyptians, Hittites, who had “notoriously low” sexual standards, and particularly the Jews, from whom evolved Christianity and many of its established principles in the Constitution.*  Given the legal scope the Court was looking for in history, this information would have been fairly easy to find, but yet there was no mention of any of it in the Court’s examination.  From these facts, one can see that the Court’s research of abortion throughout history was glaringly incomplete and that its findings did not reflect the established standard in ancient times of many cultures.

With regard to the Greeks and Romans, the Supreme Court took the position that abortion in Greco-Roman times was “resorted to without scruple”.*  However, abortion was not so commonplace that society was silent on the issue.  Many of the most eminent and influential people in Greece and Rome made very clear statements against abortion, among whom were: Soranus, Seneca, Rufus, and Ovid, the poet, who wrote that “the first one who thought of detaching from her womb the fetus forming in it deserved to die by her own weapons”.*  If some of the most famous people in Greece and Rome spoke out against abortion, it can be safely reasoned that abortion was not resorted to with as little scruple as the Court declared, for history continuously shows that the common people invariably follow the ideology of those who hold power and prestige.