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The following paper clearly shows that the infamous Roe v. Wade decision does notpass 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
The Illegality of the Roe v. Wade Decision
By Colin Morella, Senior, Seton Home Study School 2007-2008
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]
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]
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 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. 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 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.
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 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 pre-Revolutionary War America, the Common Council of New York City created a law in 1716 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 pre-quickened 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 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 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.