ABORTION: Why the Supreme Court Got it Wrong in Roe v. Wade (1973)

RIGHT TO LIFE - fetus in hand (from Prevent Disease Website)

(Photo Credit – Prevent Disease website)

by Diane Rufino, February 22, 2019

On January 22, 1973, the Supreme Court handed down one of the most controversial opinions in its history. It issued its opinion regarding the constitutionality of state laws banning and even criminalizing abortion. In striking down those laws, it identified a new fundamental right – the right of a woman to have an abortion, at essentially any time during her pregnancy and for whatever reason. It decided the case of Roe v. Wade.

States are allowed to regulate a wide variety of actions in the interest of protecting the people within its borders. These are the laws that are pursuant to its vast “police powers” – the power to regulate for the health, safety, welfare,, and morality of its citizens. These are the powers reserved to the states under the 10th Amendment, and the powers intended to remain with each state. Aside from these police powers (the 10th Amendment), the Constitution puts certain limits the states’ authority to regulate. One of those limits is when there is an individual liberty right at stake. (And not just any “liberty right” at that; the right at stake must have been a recognized liberty right at the time the 14th Amendment was adopted, which was 1868. For any other asserted liberty right, the Constitution would need to be amended per Article V’s amendment process. See the Appendix at the end of the article). In Roe v. Wade, Norma McCorvey (aka, petitioner Roe) argued that the Constitution protected her liberty to choose to have an abortion, and that that right was paramount to the state’s right to regulate abortion.
Disregarding the Court’s established jurisprudence regarding the Due Process Clause of the 14th Amendment, the Supreme Court agreed with McCorvey.

In a 7-2 opinion written by Justice Harry Blackmun, he Supreme Court declared the right to an abortion is a fundamental liberty right that the state can only limit thru regulation if that regulation furthers a very strong state interest (a “compelling state interest”) and is narrowly-tailored to achieve that interest. That is, it cannot be overbroad. The Court then went on to conclude that a woman’s liberty right in controlling whether or not she is pregnant (hence, her right to choose to have an abortion) is stronger than the state’s interest in banning abortions outright.

Justice Blackmun wrote: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Blackmun also addressed the very controversial issue of whether a fetus is a “person” within the meaning of that word in the 14th Amendment. He continued:

“The Constitution does not define ‘person’ in so many words. … The use of the word is such that it has application only postnatally.… This persuades us that the word ‘person,’ as used in the 14th Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”

Blackmun then summarized the “balancing of competing interests” at stake in the issue of pregnancy and abortion in what has become known as “the Trimester Test”:

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The opinion would go on to explain that the “health of the mother” does not necessarily only mean physical health. An abortion in the third trimester can be justified for any reason related to physical health, mental health, psychological well-being, age (being too young), familial (meaning the family wants the baby aborted), or even financial well-being. Even if the woman feels stressed from the pregnancy, she would be within her right to abort her later-term baby for “health” reasons. In other words, the opinion basically established the rule that a woman’s right to an abortion always outweighs the right to life for the unborn. Since 1973, Roe v. Wade has stood for the legal principle that a woman can have an abortion at any point in her pregnancy for any reason whatsoever, and neither the federal government nor any state can place any pre-conditions or restrictions on a woman’s right to that abortion. In other words, Roe assures women the right to an abortion on demand.

The infamous Roe decision (and its companion case, Doe v. Bolton) was the opinion of 7 out of 9 members of the court. Two justices dissented – Justice Byron White and Justice William Rehnquist. Justice White believed the Court created a new right not envisioned by the Constitution and both he and Justice Rehnquist believed the question of abortion was a state matter covered by the 10th Amendment.

Justice White wrote, in his dissenting opinion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Justice Rehnquist dissented with these views:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature.  By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

And, as the 10th Amendment states so clearly, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The power to regulate for the safety, health, welfare, and morality of its people are the so-called “Police Powers” reserved by each state under the 10th Amendment. Because the power to regulate abortions was not prohibited to the States under the Constitution or by the 14th Amendment, the power continues to reside with the state. [We are, of course, referring to abortions that aren’t absolutely medically necessary on account of rape or incest or to preserve the life or physical health of the mother; we are referring to the types of abortions that Roe and Doe filed suit for, and the types of abortions that our sexually-active and adventurous progressive/liberal population, which are merely and essentially for convenience].

The Roe v. Wade decision has resulted in the deaths of over 60 million children since that infamous January date.

Liberals and progressives, fearing that a right-leaning Supreme Court may try to limit a woman’s right to an abortion, have taken to their state legislatures to protect that right. And in many cases, as we are witnessing, they are doing so that would probably even offend the Roe court. States like New York and Virginia and Rhode Island and the District of Columbia are pursuing “late-term” abortion bills that essentially remove any meaningful state interest in the life of the unborn such that a woman can terminate her pregnancy at any point, even killing her living unborn. New York has already passed its law – the mis-named Reproductive Health Act, and the others no doubt will soon follow.

As horrible, as horrific, as heinous, as unconscionable as these laws sound, they are perfectly compliant with the Roe v. Wade opinion. That is the sad reality.

These “late-term abortion” laws show just how broad, and how cruel and insidious the Roe decision was (is).

The truth is that 31 states have relaxed abortion laws. At one time North Carolina had a fairly relaxed abortion law, but over the years, the state has exercised its interest in the life of the unborn. Currently, it is seeking to prevent any abortion after 13 weeks, except when the woman’s attending physician is able to explain why an abortion is needed to prevent risk of death to the mother or other medical emergency. 23 states permit a later-term abortion “for the life and health of the mother,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, because of stigma, and for age or for stress. These 23 states are: Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare this relaxed standard to the more strict one, which permits a woman to have a later-term abortion only if is necessary “for life and physical health of the mother.” Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming. There are 3 states that allow a full-term baby to be directly killed, but only if the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.

Now, take special note of these particular states: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. They don’t even require the pretense of a “health” reason for women to abort their full-term babies. In those 7 states, there are no bans at all on abortion at any stage. Those states are virtual killing fields. As Laurie Higgins wrote in the Illinois Family Institute: “It’s open season on babies who, through no fault of their own, have the misfortune of being conceived in the wrong womb.”

Just to drive home how barbaric a late-term abortion is – the kind of abortion just legalized in New York and the kind that Virginia expressly wanted to legalize, here is how a former abortionist describes the procedure:

“The baby is injected with a poison directly into his skull or torso. He then suffers a hideously painful death, which he will certainly feel because of his developed nervous system. The mother carries the corpse around in her womb for a day. The next day, there is an ultrasound to check if the baby is dead. If he isn’t….. if, by some miracle he survived and has been writhing and suffering in agony for the past 24 hours clinging onto life, then he will be injected again. The following day, the mother delivers her dead child. Sometimes she delivers him at the clinic, but if she can’t make it on time, the clinic is perfectly happy to recommend that she give birth into her toilet.”

What progressives and liberals don’t want the ordinary person to know is that all states allow late-term abortions that threaten a mother’s “life” – not just her “health.” There is no life-threatening condition that would ever necessitate the direct, intentional, active killing of a baby in the womb. There are relatively rare occasions in which continuing a pregnancy threatens a woman’s life, but ending a pregnancy does not require the direct, intentional, active killing of a baby. The key word here is “baby,” which means that the unborn is fully-developed or near to being fully-developed and capable of being cared for outside the womb by the mother, caregivers, or by special incubators and machines that can provide the care and protection that the mother’s womb can until term.

If there is a life-threatening condition that would necessitate the termination of a woman’s later-term, near full-term, or full-term pregnancy, the best option for doctors and for the woman is to deliver that baby. There are possible instances (such as cancer, a debilitating heart condition, toxemia, exceedingly high blood pressure, etc) when it may be necessary to remove the baby from its mother’s womb, but it is never necessary to kill him before removing him. There is no medical reason, and certainly no reasonable or moral one, to take that extra step of preemptively killing the child. Doctors can induce delivery or perform a C-section to save a woman’s life in a life-threatening or emergency situation without dismembering, crushing, burning, or chemically inducing cardiac arrest in a baby. In some induced deliveries or C-sections, babies will not survive, but that is wholly different from intentionally killing them.

The point is – the FACT is – that a delivery must happen either way. If a mother in the third trimester decides she doesn’t want or can’t have her baby inside her, she is going to have to deliver him one way or another. The only question is whether she will deliver a dead child or a living one. Giving a lethal injection to the child may be the more convenient route, but since when do we as a society put a greater value on convenience than on life itself. It certainly isn’t the necessary route.

Our options should always fall on the side of respecting and preserving life. We are the nation founded on the great truth that we are created and the moment we are created, we are endowed by our Creator with the inalienable rights of Life and Liberty.

God help us if we don’t change our thinking on this subject and don’t put an end to the killing fields.

Now, to be fair, most abortions are performed prior to 21 weeks of pregnancy. Agencies like the Center for Disease Control and abortion doctors themselves like to point out that the overwhelming percentage of abortions are performed up to 21 weeks. But, as I’ll make clear later, 21 weeks (which is very close to medical “viability”) does not mark the start of “life.” The fetus became a new living human being before that – being fully formed (just still very tiny) and exhibiting the functions of life (although some are still weak). Heck, a fetus has a heartbeat at around 6 weeks (although it isn’t heard well on an ultrasound until week 8). The point is that although most abortions are performed during the first half of pregnancy, a good portion of abortions are on the living; they are killing unborn babies.

The New York Reproductive Health Act has ignited a new debate on the abortion rights – specifically on the scope of the right and the fact that the Supreme Court never once considered the growing fetus/baby to be a “life,” let alone a unique life (not a clone of the mother).

You can see from the Roe decision, that by giving women an expansive, unfettered right to terminate her pregnancy (under the guise of “controlling her reproduction”), we have ushered in an era of evil. Since the abortion clinics have opened their doors, a parade of horribles has ensued. It appears that dissenting Justice Byron White summarized the majority’s opinion pretty well when he wrote: “At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. And the Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus…” But he shouldn’t have been so kind to the majority. That last sentence should have read: “During the entire length of a pregnancy, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus.” That is exactly what the Roe decision stands for.

Because of this parade of horribles and the clear intent on the part of Democrats/progressives/liberals to of protecting this absolute right as against all those horribles, I have to believe that the Roe opinion can be re-visited for a more compassionate, moral, scientific outcome, and yes, constitutional decision.

For years, I have spoken and written about the Roe v. Wade decision (Supreme Court, January 22, 1973, announcing a fundamental right, or “liberty right” for women in aborting their unborn). I have held the opinion that the decision was perhaps incorrectly decided because its central premise was wrong. The Supreme Court, including conservative justice Antonin Scalia, made the underlying assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus in writing its Trimester Approach to when a woman has most control over her reproduction. The “Trimester Test” was the approach the Court used in summarizing the “balancing of competing interests” at stake in a woman’s pregnancy – the woman’s interest in controlling her reproduction and what happens in her uterus, the state’s interest in the life of the unborn, and the unborn’s right to the life it was intended to have. Sadly, the Court, in fleshing out the competing interests in its opinion, made it clear that any threat to a woman’s health in the third trimester (where typically the interests are greatest for the state and for the unborn) outweighs the interests of the other parties. And it explained that the threat need not be medical in nature. The unborn or the pregnancy itself need not pose any physical harm to her. Other types of harm justifying an abortion up until the moment of birth would include emotional, psychological, and even financial. The mere fact that the pregnancy poses stress on the woman would justify an abortion, according to the high Court. That is why Roe v. Wade stands for the general rule that a woman has a constitutional right to an abortion at any time during her pregnancy, for any reason. She has an unfettered right to abort her fetus or her unborn baby….. she has a right to an abortion on demand.

Anyway, going back to my concern with the Roe v Wade opinion. I believe the Court used the wrong approach in reaching its opinion. Again, it made the general assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus. Viability means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Today, medical experts believe a fetus is viable at around 24 weeks (which is about halfway in the second trimester). The proper assessment should have been when the fetus becomes a “life.” We know mere conception doesn’t equate to life; it merely sets in motion what would become fetal development resulting in a fully-formed baby that the mother welcomes into the world to continue its growth and development outside the womb. We also know that life does not equate to viability because viability just asks when the baby can likely survive outside the womb. Implicit in that definition is that there is already a “life.” It just looks to see how advanced in development that life is. The unborn cannot live without the protection and life-sustenance from its mother. Similarly, a newborn also cannot live on its own, without the protection and life-sustenance from its parents or other caregiver. A life scientifically comes into being when there is a heartbeat, when the baby has its organs, and when it is nearly completely differentiated so that really all that is needed is more growth and fine-tuning of its life support systems for the outside world. Under this definition, the unborn is a “life” much earlier than viability.

“Life” = “personhood,” and it should be that simple. What kind of society are we when we go out of our way, legally, emotionally, and psychologically to strip certain groups of their personhood and therefore their rights? The most brutal of killers gets our full attention regarding his rights and his place as “a fellow human being.” But the sweetest, most gentle, the purest, and the most helpless are the ones we minimized and disregard. The 8th Amendment is supposedly a testament to our compassion as a civilized society. If that is so, what is the Roe decision and what is New York’s “late-term abortion” law? I would submit that it is a testament to our savagery and to this the most selfish, self-obsessed, and immoral society. We simply can’t justify these polar extremes of our so-called “civility.”

The key is using “life” as the key determinative is that when there is a “life,” our laws provide protection, including observance of its fundamental rights. I look to the Declaration of Independence which professes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

In other words, the minute an individual is created, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights. Technically, according to the words of the Declaration, the minute a new human being is created (joining of reproductive cells at conception; “conception” comes from “conceived” which means a new life, a new human being, has been conceived).

Therefore, a “person,” for purposes of our Rule of Law and our US Constitution (including the Bill of Rights and the 14th Amendment) includes the unborn. Again, maybe not exactly at conception and for several weeks after that, but certainly, and clearly, towards the end of the first trimester and the beginning of the second trimester. And as such, the unborn “life” has the same fundamental rights as the mother. Once the mother allows the pregnancy to reach the point where life has been created, then she holds no greater interest than the interest the unborn has in continuing its development. In other words, the “competing interests” explanation of a pregnancy shifts greatly. And unlike the Court’s opinion in Roe, where the unborn never was considered a legal “person” in order to take advantage of the rights and liberties enshrined in our Declaration, our Constitution, and our laws and therefore the woman held all the power to decide the unborn’s fate, the approach I believe should have been taken would recognize that the unborn is absolutely a “person” so that a woman does NOT have the unfettered right to abort her unborn, kill it, or otherwise dispose of it.

We can explain the failure of the Supreme Court in Roe using additional legal arguments as well.

The case involved a challenge to a Texas statute that criminalized abortion, which means that Norma McCorvey (aka Roe) filed suit claiming an infringement of an essential (liberty) right protected by the 14th Amendment. Challenges to state law claiming a violation of civil rights or liberty rights recognized by the Bill of Rights are brought under the Due Process Clause of 14th Amendment. Over the years since it was adopted, the Supreme Court has used the Due Process Clause of the 14th Amendment to “incorporate” the liberty rights of the US Bill of Rights as against the states; that is, if the federal government cannot infringe on our religious liberty than neither can the states, if the federal government cannot ban firearms, neither can the states, and so forth and so on.

The 14th Amendment reads:

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.

As the Court had noted, it first had to determine if the unborn are considered “persons” within the meaning of the 14th Amendment. It concluded that they were not.

If the Court would have exercised proper interpretation authority and followed its own established 14th Amendment jurisprudence (precedent), it would have taken an originalist approach to the analysis, and the outcome would have been quite different (although not ultimately providing for the right of women to have an abortion; the decision would have been left to the states themselves).

Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written) A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?” And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

If the asserted right was not recognized at the time the Fourteenth Amendment was adopted, that means society was not ready to recognize it as such. To add a new right, one that is clearly defined only by the relaxed moral and sexual societal standards in this progressive/liberal age, the Constitution would need to be amended. And that would require the amendment process outlined in Article V.  We update our Constitution, not by the individual wisdom or opinion of a handful of judges but by the collective will of the people.

Josh Craddick, a Harvard Law student recently had a Law Review article published in which he looked into the definition of “persons.” In his article (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”), he noted that layman’s dictionaries at the time of the adoption of the 14th Amendment (adopted on July 28, 1868) treated the concepts of humanity and personhood interchangeably. He also consulted William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking, was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions. It is cited at least 10-12 times each year. Blackstone expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard: “Where life can be shown to exist, legal personhood exists” (emphasis added). A look back through history shows that there were no laws to specifically protect the unborn prior to “quickening” (when the mother feels the baby begin to kick and move around) and prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.” A pregnant woman was carrying a “life,” and hence she was carrying a new person.

With respect to the second question (“Was abortion considered an essential/fundamental liberty right back in 1868?”), Craddick researched the societal view of abortion back in the day. In his article, he showed that many of the states that voted to ratify the 14th Amendment had laws criminalizing abortion. What does that mean? It seems to confirm that at the time, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it. It shows that society in 1868 viewed personhood and life in much the same way that pro-lifers understand.

Craddick wrote:

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ There can be no doubt whatsoever that the word ‘person’ referred to the fetus.” Twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The only plausible explanation for this phenomenon is that the legislatures considered the mother and child to be equal in their personhood. Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

Craddick went on to point out that even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with fertilization. Imagine that !!

Sadly, we all know the reasons the justices of the Supreme Court made that colossally-erroneous assumption that “personhood” means “someone who walks around, who has an independent life outside a woman’s womb.” First, the Court knew that society couldn’t be responsible for all the unwanted births; the burden they would impose on society would break our system of welfare and social services. Second, the case moved up through the court system at a time when the Women’s Rights Movement was fighting for equality in the workplace and in the home, with equality resting squarely on her ability to determine when, or if, she would reproduce. A woman could not control her career, her future, or even her burden at home if she were to be held hostage by her uterus and her God-given ability to bring forth new life. The Court, obsessed with social justice and equality, saw the case as one to give the Women’s Rights Movement what it wanted – the ability to finally be equal in the workforce.

Germany wanted a racially-pure German race. It felt it had that right as a sovereign country. After all, the Nazi movement was about nationalism. Germany would never be treated and punished, plundered and broken up like it was after the defeat of the Triple Alliance nations in World War I. For Germany to have the ability to engineer a pure German race (a “master-race”), it needed to accept the genocide of the undesirables.

We have to be careful what ambition causes us to sacrifice or condone.

Abortion has become all-too-often synonymous with “convenience.” It’s a “choice” – a choice to be pregnant or not to be pregnant. Again, most times, a woman or girl has an abortion very early on, before there is life inside her. But many times it’s not a “choice”; it’s a baby.

I think a case can be made that the right needs limitations, and if that can be achieved, then women can be both pro-life and pro-choice, if that makes any sense. If we look at a “Balancing of Rights” approach rather than a “Balancing of Interests” approach – that is, if we balance the rights of the woman to control her reproduction with the big daddy of them all, the right to life, of the unborn child, rather than balance the rights of the woman to terminate her pregnancy with the interest of the state in protecting the pregnancy – then we will come to a point in the pregnancy when the developing fetus becomes a “life.” At that point, society can then legally deny abortions (except for situations such as rape, incest, or risk to the woman’s life). A woman will enjoy a period of time to decide whether she wants to continue the pregnancy (hence, pro-choice), but if she waits too long, then she will not be able to abort the baby and will not be able to take a life (hence, pro-life).

We need to have conversations. We need to find common ground between pro-life supporters and pro-choice advocates. We can’t continue to offend so greatly our national conscience. Roe v. Wade needs to be re-addressed. A woman may very well be entitled to a right to abort her pregnancy, but at least that issue needs to decided by a court that is willing to do a correct and honest analysis – recognizing that the unborn becomes a life well before it is born and therefore it has the same rights that every other human being has. A woman may very well have the right to have an abortion if she chooses, but that right can not be so broad or expansive as to include the taking of another life.

We need to get this issue back into court and in front of reasonable-minded justices.

We need to stop the killing fields.

 

- 0000000
References:
Roe v. Wade, 410 U,S. 113 (1973), Majority Opinion, written by Justice Harry Blackmun, Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZO

Roe v. Wade, 410 U,S. 113 (1973), Dissenting Opinion, written by Justice William Rehnquist, Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZD

Roe v. Wade, Dissenting Opinion, by Justice Byron White – https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White and
https://www.scribd.com/document/217330653/Dissent-White

Laurie Higgins, “31 States Permit Full-Term Abortions,” Illinois Family Institute, January 28, 2019. Referenced at: https://illinoisfamily.org/life/31-states-permit-full-term-babies-to-be-killed-in-the-womb-for-virtually-any-or-no-reason/

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017). Referenced at: file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf [Abstract: What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?
The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

Calvin Freiburger, “Article in Harvard Law Journal Concludes: The Preborn Child is a Constitutional Person,” Live Action, June 1, 2017. Referenced at: https://www.liveaction.org/news/landmark-harvard-essay-preborn-child-constitutional-person/

VIDEO: Dr. Anthony Levatino, former abortion doctor, explains that abortion is never medically necessary to save a woman’s life during pregnancy – https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig [Let me illustrate with a real-life case that I managed while at the Albany Medical Center. A patient arrived one night at 28 weeks gestation with severe pre-eclampsia or toxemia. Her blood pressure on admission was 220/160. A normal blood pressure is approximately 120/80. This patient’s pregnancy was a threat to her life and the life of her unborn child. She could very well be minutes or hours away from a major stroke. This case was managed successfully by rapidly stabilizing the patient’s blood pressure and “terminating” her pregnancy by Cesarean section. She and her baby did well. This is a typical case in the world of high-risk obstetrics. In most such cases, any attempt to perform an abortion “to save the mother’s life” would entail undue and dangerous delay in providing appropriate, truly life-saving care. During my time at Albany Medical Center I managed hundreds of such cases by “terminating” pregnancies to save mother’s lives. In all those cases, the number of unborn children that I had to deliberately kill was zero.]

CHART: State-by-State Later Term Abortion Policies – https://www.kff.org/womens-health-policy/state-indicator/later-term-abortions/?currentTimeframe=0&selectedDistributions=state-prohibits-some-abortions-after-a-certain-point-in-pregnancy–threshold-for-later-term-abortions–later-term-abortion-permitted-when-pregnancy-threatens-womans&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D

State Facts About Abortion: North Carolina (Fact Sheet, May 2018), Guttmacher Institute – https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-north-Carolina

Brandon Moseley, “Federal Court Strikes Down an Alabama Abortion Law,” Alabama Reporter, August 23, 2018. Referenced at: https://www.alreporter.com/2018/08/23/federal-court-strikes-down-an-alabama-abortion-law/

GHI Breborowicz,” Early Pregnancy: Limits of Fetal Viability and Its Enhancement,” NCBI (National Center for Biotechnology Information), January 5, 2011; pp. 49-50. Referenced at: https://www.ncbi.nlm.nih.gov/pubmed/11753511 [“Viability” of a fetus, or “fetal viability,” means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. Consequently, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors. It is only in virtue of both factors that a viable fetus can exist ex utero and thus later achieve independent moral status. Moreover, these two factors do not exist as a function of the autonomy of the pregnant woman. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and later achieve independent human status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient. In the United States viability presently occurs at approximately 24 weeks of gestational age (Chervenak, L.B. McCullough; Textbook of Perinatal Medicine, 1998)].

“Can a Fetus Feel Pain?,” NCBI (National Center for Biotechnology Information), April 15, 2006; 332 (7546): 909–912. Referenced at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/

“How Your Fetus Grows During Pregnancy,” American College of Obstetricians & Gynecologists (ACOG), (April 2018). Referenced at: https://www.acog.org/Patients/FAQs/How-Your-Fetus-Grows-During-Pregnancy?IsMobileSet=false

Traci DeVette Griggs, “New York’s War on Children Hits a New Low on Anniversary of Roe v. Wade,” Family Policy Facts (NC Family Policy Council), January 23, 2019. Referenced at: https://www.ncfamily.org/new-yorks-war-on-children-hits-a-new-low-on-anniversary-of-roe-v-wade/

Roe v. Wade, Texas Bar – https://www.texasbar.com/civics/High%20School%20cases/roe-v-wade.html

Roe v. Wade (1973), as explained by Clarke Forsythe, Senior Counsel for Americans United for Life (AUL) and Melissa Murray, Berkeley Law School professor. [Clarke Forsythe is also the author of the book Abuse of Discretion: The Inside Story of Roe V. Wade, and Ms. Melissa Murray in addition to being a law school professor, also as the Faculty Director for the Center for Reproductive Rights and Justice]. Referenced at: https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/amendments-due-process-and-the-right-to-privacy/v/roe-v-wade [See Appendix below for a transcript of this video]
APPENDIX: (Transcript of the Khan Academy Video, as modified a bit by Diane Rufino)

Question: “Mr. Forsythe, could you set the stage for us a little bit. What was going on during this time period?”

Mr. Clarke: “Well, there were efforts in the 1960s to repeal abortion laws in the individual states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973. Roe vs. Wade was the case from Texas.”

Ms. Murray: “Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women’s rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman’s health or life, or in cases of rape, incest, or fetal anomaly.”

Mr. Clarke: “Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law [ie, They were looking for a “test case”]. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy.”

Ms. Murray: “And so Norma McCorvey brought this case. She was an unmarried 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She gave birth to her first child, a daughter, and ultimately signed over custody to her mother to raise her since her life wasn’t very stable (she was moving around a lot). She gave her second child up for adoption. When she found herself pregnant for a third time, she wasn’t willing to do either of these things again and so she simply wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century criminalized abortion in all cases except those instances where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then (that is, what her lawyers thought, and sought, to do), was to challenge the law as being unconstitutional. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. They sued the State of Texas to challenge the constitutionality of Texas’ criminal abortion ban.”

Mr. Clarke: “But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As we all know, she never got an abortion. She gave birth and placed her child for adoption.” [In the years after the decision, Norma had a complete change of heart and became a strong opponent of abortion].

Question: “Okay, so Roe was Norma McCorvey. Who was Wade?”

Mr. Clarke: “Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court.”

Questions: “So the case eventually made it to the Supreme Court. How did the Court rule?”

Mr. Clarke: “The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th Amendment of the Constitution even though the 14th Amendment doesn’t say anything about abortion, or the unborn child; the 14th Amendment just uses the term liberty. Ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th Amendment.”

Question: “That’s very interesting. I’ve learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there’s a penumbra of privacy that you see in a few ways. What was the Court’s reasoning that the right to an abortion could fall under this zone of privacy?”

Mr. Clarke: “If you read the Roe opinion – specifically, on page 152 of the opinion – Justice Blackmun starts out by citing a string of prior Supreme Court cases, beginning about 1910, which elude to a right of privacy which undergirds other rights in the Bill of Rights. Blackmun argued that these cases lead to a general right of privacy, and that this right of privacy is broad enough to encompass a woman’s right to an abortion. But then four pages later, on page 156, Blackmun turns around and says that abortion is inherently different from all those other cases that make up the right of privacy (including the right to use contraception and contraceptive devices to control fertility and reproduction, Griswold v. Connecticut (1965) because it involves the taking of a life.”

Ms. Murray: “The right of privacy doesn’t actually come from Roe vs. Wade. It comes from a case decided about eight years earlier, in 1965, called Griswold vs. Connecticut. The issue in the Griswold case was whether a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception violated the Constitution. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed. They challenged the statute, arguing that the right to use contraception was a fundamental individual right. Furthermore, they argued that since individuals have the right to use contraception, doctors also have the right to advise patients about such. Patients are entitled to be informed about their medical choices. The Supreme Court, in an opinion authored by Justice William Douglas, agreed with the clinic. In the Griswold case, the Court articulated for the first time this right of privacy. The opinion explained that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (the right to conscience created by the right to worship freely), the Third (the right to be free in one’s home from the quartering of troops), the Fourth (the right to be safe and secure in one’s own person, one’s home, and with one’s effects from unreasonable government searches and seizures), and the Ninth Amendments create the right to privacy which encompasses marital relations. Douglas, writing for the majority, indicated that this right had actually ‘been percolating in the Court’s decisions for some time.’”

Question: “Did any of the Justices dissent in the Roe decision and if so, why?”

Mr. Clarke: “Well there were two dissents, one by Justice White and the other by Justice Rehnquist. Justice White said that the Court was engaging in raw judicial power (ie, judicial activism) and that the Justices did not have the right or the authority, on account of the 10th Amendment, to strike down the abortion laws of the individual states: it could only rely on a doctrine called ‘substantive due process.’ The justices were addressing the assertion that a woman’s right to an abortion is a fundamental right and hence, under the Due Process Clause of the 14th Amendment, it cannot be violated or burdened. The Due Process Clause says that no person can be deprived of “life, liberty, or property, without due process of law.” However, there are clear limits as to which individual “liberty” rights are imposed on a state (that is, those which it is obligated to respect and refrain from regulating). In in 1934, the Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In other words, as explained further by the Court, the right must have been recognized as a liberty right (essential to our sense of ordered liberty) at the time of the adoption of the 14th Amendment to be recognized by its Due Process Clause. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th Amendment in the 1860s and leading up to 1868, which is when the Amendment was added to the Constitution. In other words, this history was evidentiary history. As such, this history of state limits and prohibitions on abortion actually served to contradict the petitioner’s (the birth control clinic’s) assertion that the 14th Amendment was intended to include a right to abortion.”

Question: “It appears that Roe is not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood vs. Casey, or Whole Woman’s Health vs. Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion?

Ms. Murray: “As soon as Roe was decided in 1973, there was an effort to sort of roll it back and hem it in a little bit. Frank Church, who’s a Senator from Idaho, announced ‘The Church Amendment,’ which basically says that physicians don’t have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So we see one way to limit the reach of this right – by limiting the number of providers who are available to offer abortions.”

Mr. Clarke: “In fact, the Court has kind of cut back on Roe vs. Wade in four cases over the years. But then in 2016, it appeared to return to its original position that the state nor federal government would tolerate any impermissible burden to a woman’s right to an abortion:
Harris vs. McRae [A 1980 case in which the Court acknowledged that federal funding could be limited for abortions. The Court held that states participating in the Medicaid program (established under Title XIX of the Social Security Act) were not obligated to fund medically necessary abortions. Title XIX of the Social Security Act was enacted to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. Beginning in 1976, Congress passed a number of versions of what was known as the “Hyde Amendment” which severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the Hyde Amendment, filing suit against Patricia R. Harris, the US Secretary of Health and Human Services. The Supreme Court found that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices”].
Planned Parenthood vs. Casey [A 1992 case in which the Supreme Court upheld various restrictions to an immediate abortion (an “abortion on demand”). The Pennsylvania state legislature amended its abortion control law in 1988 and 1989, to required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. In a bitter, 5-to-4 decision, the Supreme Court again re-affirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the Court imposed an articulable standard to determine the validity of laws restricting abortions. The standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on a woman’s right to an abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement]. Other similar cases involving restrictions on immediate access to an abortion reached the same conclusion.
Whole Woman’s Health versus Hellerstedt [In 2016, the Supreme Court flipped. In this case, the Supreme Court was asked to rule on the constitutionality of a Texas law that put limits on physicians performing abortions and on the abortion facilities themselves. A group of abortion providers sued the state. In a 5-3 opinion authored by Justice Stephen Breyer (remember, Justice Scalia had passed in February or 2016 and so it was only an 8-member Court at the time) the Supreme Court noted that the provisions that were challenged did not actually offer the medical benefits that they claimed to offer. Hence, as a matter of constitutionality, they were insufficient to justify the burdens on access that each of those provisions imposed.

Question: “What do you see as the future of Roe vs. Wade?”

Mr. Clarke: “Well, the Supreme Court has failed as the national abortion control board. It cannot monitor abortion. It can’t intervene, it can’t regulate or legislate itself, it can’t act as public health administrators, and it can’t investigate. And so I believe it’s absolutely certain that the Court, sooner or later, will have to overturn the Roe decision because of this failure and return the matter to the states.”

Ms. Murray: “Remember, when they were talking about repealing or reforming those abortion laws we referred to earlier, from the 1960s and 70s, it was connected in a big way to the growing women’s rights social movement. Perhaps the most critical question of that movement asked ‘What will be the role of women going forth in a modern society.’ When the question of contraception came before the Court in 1965, one of the questions was whether women should be allowed to control her reproduction and to choose when to have children…. Should she be allowed to control the timing of births in order to accommodate her career. It’s the same issue that came up in the abortion debate. If women were to have equal opportunities in the workforce, they would need to determine when they would become mothers and to determine the timing of their children. They would also need the flexibility to determine if they even wanted a child in the first place.”

Question: “So we’ve learned that the decision to legalize abortion in Roe vs. Wade was based on the right of privacy, which the Supreme Court has inferred from the Due Process Clause of the 14th Amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children.

To learn more about his case, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources on US Government and Politics.

Advertisements

Why Can’t Women be Both Pro-Choice AND Pro-Life? It’s Possible With Common Sense Limitations on Abortion

ABORTION - Right to Life

by Diane Rufino, January 30, 2019

On January 22, 1973, the Supreme Court handed down one of the most controversial opinions in its history. It issued its opinion regarding the constitutionality of state laws banning and even criminalizing abortion. In striking down those laws, it identified a new fundamental right – the right of a woman to have an abortion, at essentially any time during her pregnancy and for whatever reason. It decided the case of Roe v. Wade.

States are allowed to regulate a wide variety of actions in the interest of protecting the people within its borders. These are the laws that are pursuant to its vast “police powers” – the power to regulate for the health, safety, welfare,, and morality of its citizens. These are the powers reserved to the states under the 10th Amendment, and the powers intended to remain with each state. Aside from these police powers (the 10th Amendment), the Constitution puts certain limits the states’ authority to regulate. One of those limits is when there is an individual liberty right at stake. (And not just any “liberty right” at that; the right at stake must have been a recognized liberty right at the time the 14th Amendment was adopted, which was 1868.  For any other asserted liberty right, the Constitution would need to be amended per Article V’s amendment process. See the Appendix at the end of the article).  In Roe v. Wade, Norma McCorvey (aka, petitioner Roe) argued that the Constitution protected her liberty to choose to have an abortion, and that that right was paramount to the state’s right to regulate abortion. Disregarding the Court’s established jurisprudence regarding the Due Process Clause of the 14th Amendment, the Supreme Court agreed with McCorvey.

In a 7-2 opinion written by Justice Harry Blackmun, he Supreme Court declared the right to an abortion is a fundamental liberty right that the state can only limit thru regulation if that regulation furthers a very strong state interest (a “compelling state interest”) and is narrowly-tailored to achieve that interest. That is, it cannot be overbroad.  The Court then went on to conclude that a woman’s liberty right in controlling whether or not she is pregnant (hence, her right to choose to have an abortion) is stronger than the state’s interest in banning abortions outright.

Justice Blackmun wrote: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Blackmun also addressed the very controversial issue of whether a fetus is a “person” within the meaning of that word in the 14th Amendment.  He continued:

“The Constitution does not define ‘person’ in so many words. … The use of the word is such that it has application only postnatally.… This persuades us that the word ‘person,’ as used in the 14th Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”

Blackmun then summarized the “balancing of competing interests” at stake in the issue of pregnancy and abortion in what has become known as “the Trimester Test”:

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The opinion would go on to explain that the “health of the mother” does not necessarily only mean physical health. An abortion in the third trimester can be justified for any reason related to physical health, mental health, psychological well-being, age (being too young), familial (meaning the family wants the baby aborted), or even financial well-being. Even if the woman feels stressed from the pregnancy, she would be within her right to abort her later-term baby for “health” reasons.  In other words, the opinion basically established the rule that a woman’s right to an abortion always outweighs the right to life for the unborn. Since 1973, Roe v. Wade has stood for the legal principle that a woman can have an abortion at any point in her pregnancy for any reason whatsoever, and neither the federal government nor any state can place any pre-conditions or restrictions on a woman’s right to that abortion. In other words, Roe assures women the right to an abortion on demand.

The infamous Roe decision (and its companion case, Doe v. Bolton) was the opinion of 7 out of 9 members of the court. Two justices dissented – Justice Byron White and Justice William Rehnquist. Justice White believed the Court created a new right not envisioned by the Constitution and both he and Justice Rehnquist believed the question of abortion was a state matter covered by the 10th Amendment.

Justice White wrote, in his dissenting opinion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [410 U.S. 223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Justice Rehnquist dissented with these views:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.”

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

And, as the 10th Amendment states so clearly, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The power to regulate for the safety, health, welfare, and morality of its people are the so-called “Police Powers” reserved by each state under the 10th Amendment. Because the power to regulate abortions was not prohibited to the States under the Constitution or by the 14th Amendment, the power continues to reside with the state. [We are, of course, referring to abortions that aren’t absolutely medically necessary on account of rape or incest or to preserve the life or physical health of the mother; we are referring to the types of abortions that Roe and Doe filed suit for, and the types of abortions that our sexually-active and adventurous progressive/liberal population, which are merely and essentially for convenience].

The Roe v. Wade decision has resulted in the deaths of over 60 million children since that infamous January 1973 date.

Fast forward to 2019.  On the 46th anniversary of Roe v. Wade, the New York state legislature passed the Reproductive Health Act, a “late-term abortion” bill that now allows women to freely have abortions in the state at practically any time up until the birth of the child and for almost any reason. It essentially minimizes any state interest in the well-being or life of the unborn child. The New York State Senate passed the Reproductive Health Act late in the evening on January 22, and Governor Andrew Cuomo quickly signed it into law.

Even before this new law was enacted, over a third of all unborn babies in New York City were aborted. The Center for Disease Control and Prevention (CDC) reported that in 2015, there were 544 abortions for every 1,000 live births in NYC, with African-Americans predominantly being the ones aborting their babies.

The new “late-term abortion” law in NY states that abortions are now legal when:

(i)  “The patient is within twenty-four weeks from the commencement of pregnancy, OR;

(ii)  There is absence of fetal viability, OR;

(iii)  The abortion is necessary to protect the patient’s life or health.”

While the law appears to put conditions on a woman’s right to abort her unborn baby after 24 weeks (after “viability”), those conditions are essentially meaningless.  We read the phrase “to protect the patient’s life or health” to understand that an abortion would be permitted post 24 weeks if the woman is in danger of dying or suffering some permanent damage. But we would be wrong. According to the Supreme Court’s decision in Doe v. Bolton, the companion case to Roe v. Wade, “health” includes “all factors—physical, emotional, psychological, familial, financial situation, and the woman’s age—relevant to the wellbeing of the patient.”  The Roe decision mentioned stress on the mother as a health concern justifying an abortion in the third trimester. So, the law essentially removes any restrictions on a woman having an abortion up until the baby’s birth.

This law shows just how broad, and how cruel and insidious the Roe decision was. It wasn’t until Democrats finally achieved a solid majority in both chambers of the New York Legislature that they finally passed this bill. For the past 12 years, Democrats have tried to get it passed by Republicans were able to block it each time.

The Virginia state legislature defeated a similar bill on Tuesday, January 29. Virginia Rep. Kathy Tran introduced a bill (HB 2491) which would have allowed for abortion up until birth in cases in which the health or life of the mother is at risk. (Refer to the video referenced at the end of this article, discussion with a former abortion doctor –  https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig ). The Repeal Act would remove all existing abortion restrictions in the state of Virginia, and as Tran has admitted, would include allowing an abortion even when a woman is in active labor about to deliver her child.  Truly unconscionable.

ABORTION ARTICLE - Twitter Comment (Dr. Omar Hamada)

Virginia may follow the New York plan, which was to continue to propose such legislation until Democrats take control of both houses of its legislature. But the truth is that Virginia already has a fairly relaxed abortion law and a fairly relaxed abortion policy, pretty much following the guidance the Supreme Court has provided in Roe and Doe (again the companion case) and in its subsequent opinions, such as Casey.

My guess is that liberal states like New York, which have large populations of women who can’t, or refuse to, exercise proper control over their bodies or in their sex lives, want to make sure abortion rights are alive and well (and enlarged and unfettered) within their borders just in case an evil conservative Supreme Court (perhaps even a “ruthless court) dares to try to put reasonable limits on that right in any way. I think we are seeing such laws being passed which expressly make it clear that a woman has a right, up until the point of delivery, to terminate and abort the life growing inside her. They want to make sure that Roe is viewed as standing for the most expansive view of the right to an abortion. And if the Supreme Court should just happen to follow the legal position of dissenting justices Byron White and William Rehnquist, which was that the states have the right, under the 10th Amendment, to legislate abortion and the federal government had no point taking that right away from them, the states themselves will already be ready with strong abortion-protection laws for our women’s rights mentality population.

Pro-baby-killing advocates are preparing for the day Roe v. Wade is overturned. (which may happen but the right of a woman to have an abortion will never be taken away; it will just be protected on a state-by-state basis).

The truth is that 31 states have relaxed abortion laws, with North Carolina being one of them.  24 states, including North Carolina, permit a later-term abortion “for the life and health of the mother,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, because of stigma, and for age or for stress. These 24 states are:  Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare this relaxed standard to the more strict one, which permits a woman to have a later-term abortion only if is necessary “for life and physical health of the mother.”  Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.  There are 3 states that allow a full-term baby to be directly killed, but only if the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.

Now, take special note of these particular states: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. They don’t even require the pretense of a “health” reason for women to abort their full-term babies. In those 7 states, there are no bans at all on abortion at any stage. Those states are virtual killing fields. As Laurie Higgins wrote in the Illinois Family Institute: “It’s open season on babies who, through no fault of their own, have the misfortune of being conceived in the wrong womb.”

Just to drive home how barbaric a late-term abortion is – the kind of abortion just legalized in New York and the kind that Virginia expressly wanted to legalize, here is how a former abortionist describes the procedure:

“The baby is injected with a poison directly into his skull or torso. He then suffers a hideously painful death, which he will certainly feel because of his developed nervous system. The mother carries the corpse around in her womb for a day. The next day, there is an ultrasound to check if the baby is dead. If he isn’t…..  if, by some miracle he survived and has been writhing and suffering in agony for the past 24 hours clinging onto life, then he will be injected again. The following day, the mother delivers her dead child. Sometimes she delivers him at the clinic, but if she can’t make it on time, the clinic is perfectly happy to recommend that she give birth into her toilet.”

What progressives and liberals don’t want the ordinary person to know is that all states allow late-term abortions that threaten a mother’s “life” – not just her “health.”  There is no life-threatening condition that would ever necessitate the direct, intentional, active killing of a baby in the womb. There are relatively rare occasions in which continuing a pregnancy threatens a woman’s life, but ending a pregnancy does not require the direct, intentional, active killing of a baby. The key word here is “baby,” which means that the unborn is fully-developed or near to being fully-developed and capable of being cared for outside the womb by the mother, caregivers, or by special incubators and machines that can provide the care and protection that the mother’s womb can until term.

If there is a life-threatening condition that would necessitate the termination of a woman’s later-term, near full-term, or full-term pregnancy, the best option for doctors and for the woman is to deliver that baby. There are possible instances (such as cancer, a debilitating heart condition, toxemia, exceedingly high blood pressure, etc)  when it may be necessary to remove the baby from its mother’s womb, but it is never necessary to kill him before removing him. There is no medical reason, and certainly no reasonable or moral one, to take that extra step of preemptively killing the child. Doctors can induce delivery or perform a C-section to save a woman’s life in a life-threatening or emergency situation without dismembering, crushing, burning, or chemically inducing cardiac arrest in a baby. In some induced deliveries or C-sections, babies will not survive, but that is wholly different from intentionally killing them.

The point is – the FACT is –  that a delivery must happen either way. If a mother in the third trimester decides she doesn’t want or can’t have her baby inside her, she is going to have to deliver him one way or another. The only question is whether she will deliver a dead child or a living one. Giving a lethal injection to the child may be the more convenient route, but since when do we as a society put a greater value on convenience than on life itself.  It certainly isn’t the necessary route.

ABORTION ARTICLE - Twitter Comment (Matt Walsh(

Our options should always fall on the side of respecting and preserving life. We are the nation founded on the great truth that we are created and the moment we are created, we are endowed by our Creator with the inalienable rights of Life and Liberty.

God help us if we don’t change our thinking on this subject and don’t put an end to the killing fields.

Now, to be fair, most abortions are performed prior to 21 weeks of pregnancy. Agencies like the Center for Disease Control and abortion doctors themselves like to point out that the overwhelming percentage of abortions are performed up to 21 weeks.  But, as I’ll make clear later, 21 weeks (which is very close to medical “viability”) does not mark the start of “life.” The fetus became a new living human being before that – being fully formed (just still very tiny) and exhibiting the functions of life (although some are still weak). Heck, a fetus has a heartbeat at around 6 weeks (although it isn’t heard well on an ultrasound until week 8)..

The point is that although most abortions are performed during the first half of pregnancy, a good portion of abortions are on the living; they are killing unborn babies.

This New York Reproductive Health Act has ignited a new debate on the abortion rights – specifically on the scope of the right and the fact that the Supreme Court never once considered the growing fetus/baby to be a “life,” let alone a unique life (not a clone of the mother).

If this abortion law doesn’t disturb you, look at the other ways that a woman’s right of abortion plays out:

On May 12, 2016, Alabama’s Governor Robert Bentley signed bill SB363 into law, to go into effect later that year, on August 1.  SB363 is the Alabama Unborn Child Protection from Dismemberment Abortion Act.  It was never allowed to go into effect.

SB 363 would have prohibited a physician from performing a “dismemberment abortion” unless it was necessary to prevent serious health risk to the pregnant person. The bill defines “dismemberment abortion” as “the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp, or any combination of the foregoing, a portion of the unborn child’s body to cut or rip it off.”

The bill would have allowed for a cause of action for injunctive relief and a cause of action for civil damages against a person who performs such a “dismemberment abortion.” Any person who violated the law would be fined $10,000 and/or imprisoned for up to two years.

This law targeted a procedure known as dilation and evacuation (D&E) which is frequently used during second-trimester abortions. According to the American Congress of Obstetricians and Gynecologists, an abortion using suction aspiration can be performed up to 14 weeks’ gestation, but after 14 weeks, the D&E procedure would need to be used to perform an abortion. As such, dilation and evacuation bans, depending upon their language, may ban all surgical abortion past 14 weeks’ gestation.

The bill’s provisions were based on claims that a fetus can feel pain at 20 weeks or earlier.  A look at some medical studies seems to conclude that a fetus doesn’t feel pain before 24-26 weeks (see the NCBI article cited – “Does a Fetus Feel Pain?”).  However, some have reported that pain is observable in fetuses at 18 weeks’ of gestation and that there are clear behavioral responses to noxious stimuli (to a needle, to concentrated saline solution) by 26 weeks’ gestation. The Alabama ACLU argued that leading medical experts such as the American College of Obstetricians and Gynecologists oppose this type of abortion restriction because the D&E procedure so effective. An evidence-based and non-partisan report from the National Academies of Science, Engineering, and Medicine described D&E as a “superior method” of abortion, finding that it is extremely safe with minimal complications.

Despite the gruesomeness that Alabama’s law sought to avoid, the American Civil Liberties Union (ACLU, the organization that Ruth Bader Ginsburg devoted her early legal career to) filed suit to have it overturned. The ACLU alleged that Supreme Court jurisprudence on abortion is clear and that states may not impose undue burdens on a woman’s right to have an abortion or to make it burdensome for her to make necessary medical decisions regarding her pregnancy. It argued that the law must be stricken in order that doctors can continue to use their best judgement to provide the care that is right for their patients, in light of a woman’s right to terminate her pregnancy. At first the ACLU sought an injunction/ temporary restraining order to block enforcement of SB363 (which was granted on July 13, 2016), and then on October 26, 2017, US District Court Judge Myron Thompson ruled the law unconstitutional. On August 22, 2018, the 11th Circuit Court of Appeals upheld the ruling.  [case: West Alabama Women’s Center v. Miller; West Alabama Women’s Center filed suit on behalf of the facility and its doctors and patients against Thomas Miller, Alabama state Health Officer].

The really sad thing is that the 11th Circuit knew its ruling was wrong. It knew that its endorsement of the lower court ruling was intellectually dishonest. It knew its ruling was wrong because it has long-held that the Supreme Court got it wrong in Roe v. Wade (1973) and in subsequent cases such as Planned Parenthood of Se. Pa. v. Casey (1992).  The 11th Circuit has criticized the Supreme Court’s abortion decisions, calling them “an aberration of constitutional law,” and accusing the majority of creating a new right from the bench, thus siding with the views of the dissenting justices, Byron White and William Rehnquist.

If the judges knew the ruling was wrong, why did it issue it?  Judge Joel Dubina of the 11th Circuit was forthright in his explanation. Essentially, he said that as an inferior court to the Supreme Court, he was bound to rule in favor of its prior decisions. And under that standard, he had to conclude that Alabama’s law prohibiting dismemberment abortions of live unborn babies, known as Dilation and Extraction (D&E), violates the High Court’s decisions.

In his special concurrence, Judge Dubina wrote:

“I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, ‘I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.’ Id. at 169, 127 S. Ct. at 1639. The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Since when are federal judges BOUND BY OATH to follow all of the Supreme Court’s precedents?

I looked up the oath of office that federal judges must take when they are sworn in and this is what it says:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”    [June 25, 1948, ch. 646, 62 Stat. 907; Pub. L. 101–650, title IV, § 404, Dec. 1, 1990, 104 Stat. 5124].

To me, it sounds like each federal judge owes paramount allegiance to the US Constitution from where judicial authority derives.

Kayla Moore, the President of the Montgomery based Foundation for Moral Law and a party supporting the bill, took issue with the ruling and with Judge Dubina’s position:

“Because the Eleventh Circuit had an amicus brief in front of it explaining why the court’s duty was to follow the Constitution instead of the Supreme Court, the court knew it had a duty to disregard Roe and protect the children’s right to live.” Moore added, “The Eleventh Circuit cannot wash its hands of the blood of the innocent by placing the blame on the Supreme Court. The victims of the Eleventh Circuit’s passivity are Alabama’s unborn children, who can now be murdered by having their limbs torn from their bodies while their hearts are still beating.”

In the case (West Alabama Women’s Center v. Miller), Liberty Counsel filed an amicus brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists and American College of Pediatricians, defending the Alabama law that prohibits dismemberment abortions of live unborn babies based on the medical evidence of their ability to feel intense pain. Liberty Counsel and Alabama’s Pro-Life legislators argue that the scientific evidence supports the assertion that unborn babies feel pain as early as eight weeks gestation.    [Reference: Brandon Moseley’s article “Federal Court Strikes Down an Alabama Abortion Law,” in the Alabama Reporter].

The court used very graphic language to describe the abortion procedure:

“This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15- to 18-week stage of development, at which time the unborn child’s heart is already beating.

Under the Act, the one performing the abortion is required to kill the unborn child before ripping apart its body during the extraction. [citation omitted] Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not. The parties agree that for these purposes an unborn child is alive while its heart is beating, which usually begins around six weeks.”  [See  “How Your Fetus Grows During Pregnancy,” Am. Coll. of Obstetricians & Gynecologists (April 2018)]   Ibid.

The Alabama Legislature did not ban abortions in the state; but rather just this particularly type of abortion. “In this method of ending a pregnancy, dismemberment abortion ‘requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.’ [Stenberg v. Carhart, 530 U.S. 914, 958 (2000)]. The practitioner then “uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.”  [Ibid]

Luckily, most of the abortions performed at Alabama’s abortion facilities were done in the first trimester. Only 4% were performed after 15 weeks. For example, in 2017, 6,603 abortions were performed, of which 183 were D&E procedures. Although authorities like to minimize the reality, the number is still heartbreaking.

The comments made by Mat Staver, founder and Chairman of Liberty Counsel, regarding the West Alabama Women’s Center v. Miller decision echo my sentiments exactly and probably those of a great many people.  He said:

“Alabama’s law is a common-sense solution to a barbaric and gruesome procedure. If the vilest criminal has human dignity that prevents cruel and unusual punishment, then how much more should laws protect an innocent unborn child from the most despicable form of torture and death? There are just seven countries in the world that allow children to endure this barbaric procedure and that disgraceful list includes the United States. We must make the womb a safe place again. This case or one like it cries out to the Supreme Court Justices to reverse the horrible abortion decisions. As the court correctly noted, the Supreme Court abortion decisions are an ‘aberration of constitutional law.’ This is true, but they also violate higher law and condone the worst kind of infanticide.”

Similar bans in Kansas, Oklahoma, Louisiana, Texas, and Arkansas have all been blocked when challenged in court. The ACLU is challenging a similar law in Kentucky.

The issue (the constitutionality of such “dismemberment” laws) may not be over, however.  On December 20, 2018, Alabama Attorney General Steve Marshall filed an appeal with the US Supreme Court to review the 11th Circuit’s ruling. Right to Life activists will be watching carefully to see if our new conservative court (perhaps even a “ruthless” court) will agree to hear the case.

You can see from the Roe decision, that by giving women an expansive, unfettered right to terminate her pregnancy (under the guise of “controlling her reproduction”), we have ushered in an era of evil. Since the abortion clinics have opened up, a parade of horribles has ensued.

Because of this parade of horribles and the clear intent on the part of Democrats/progressives/liberals to of protecting this absolute right as against all those horribles, I have to believe that the Roe opinion can be re-visited for a more compassionate, moral, scientific outcome, and yes, constitutional decision.

For years, I have spoken and written about the Roe v. Wade decision (Supreme Court, January 22, 1973, announcing a fundamental right, or “liberty right” for women in aborting their unborn).  I have held the opinion that the decision was perhaps incorrectly decided because its central premise was wrong..  The Supreme Court, including conservative justice Antonin Scalia, made the underlying assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus in writing its Trimester Approach to when a woman has most control over her reproduction. The “Trimester Test” was the approach the Court used in summarizing the “balancing of competing interests” at stake in a woman’s pregnancy – the woman’s interest in controlling her reproduction and what happens in her uterus, the state’s interest in the life of the unborn, and the unborn’s right to the life it was intended to have.  Sadly, the Court, in fleshing out the competing interests in its opinion, made it clear that any threat to a woman’s health in the third trimester (where typically the interests are greatest for the state and for the unborn) outweighs the interests of the other parties. And it explained that the threat need not be medical in nature. The unborn or the pregnancy itself need not pose any physical harm to her. Other types of harm justifying an abortion up until the moment of birth would include emotional, psychological, and even financial. The mere fact that the pregnancy poses stress on the woman would justify an abortion, according to the high Court. That is why Roe v. Wade stands for the general rule that a woman has a constitutional right to an abortion at any time during her pregnancy, for any reason. She has an unfettered right to abort her fetus or her unborn baby…..  she has a right to an abortion on demand.

Anyway, going back to my concern with the Roe v Wade opinion.  I believe the Court used the wrong approach in reaching its opinion. Again, it made the general assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus. Viability means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Today, medical experts believe a fetus is viable at around 24 weeks (which is about halfway in the second trimester).  The proper assessment should have been when the fetus becomes a “life.”  We know mere conception doesn’t equate to life; it merely sets in motion what would become fetal development resulting in a fully-formed baby that the mother welcomes into the world to continue its growth and development outside the womb. We also know that life does not equate to viability because viability just asks when the baby can likely survive outside the womb. Implicit in that definition is that there is already a “life.” It just looks to see how advanced in development that life is.  The unborn cannot live without the protection and life-sustenance from its mother. Similarly, a newborn also cannot live on its own, without the protection and life-sustenance from its parents or other caregiver. A life scientifically comes into being when there is a heartbeat, when the baby has its organs, and when it is nearly completely differentiated so that really all that is needed is more growth and fine-tuning of its life support systems for the outside world. Under this definition, the unborn is a “life” much earlier than viability.

“Life” = “personhood,” and it should be that simple. What kind of society are we when we go out of our way, legally, emotionally, and psychologically to strip certain groups of their personhood and therefore their rights? The most brutal of killers gets our full attention regarding his rights and his place as “a fellow human being.” But the sweetest, most gentle, the purest, and the most helpless are the ones we minimized and disregard. The 8th Amendment is supposedly a testament to our compassion as a civilized society. If that is so, what is the Roe decision and what is New York’s “late-term abortion” law?  I would submit that it is a testament to our savagery and to this the most selfish, self-obsessed, and immoral society. We simply can’t justify these polar extremes of our so-called “civility.”

The key is using “life” as the key determinative is that when there is a “life,” our laws provide protection, including observance of its fundamental rights. I look to the Declaration of Independence which professes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

In other words, the minute an individual is created, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights. Technically, according to the words of the Declaration, the minute a new human being is created (joining of reproductive cells at conception; “conception” comes from “conceived” which means a new life, a new human being, has been conceived).

Therefore, a “person,” for purposes of our Rule of Law and our US Constitution (including the Bill of Rights and the 14th Amendment) includes the unborn.  Again, maybe not exactly at conception and for several weeks after that, but certainly, and clearly, towards the end of the first trimester and the beginning of the second trimester.  And as such, the unborn “life” has the same fundamental rights as the mother. Once the mother allows the pregnancy to reach the point where life has been created, then she holds no greater interest than the interest the unborn has in continuing its development.  In other words, the “competing interests” explanation of a pregnancy shifts greatly. And unlike the Court’s opinion in Roe, where the unborn never was considered a legal “person” in order to take advantage of the rights and liberties enshrined in our Declaration, our Constitution, and our laws and therefore the woman held all the power to decide the unborn’s fate, the approach I believe should have been taken would recognize that the unborn is absolutely a “person” so that a woman does NOT have the unfettered right to abort her unborn, kill it, or otherwise dispose of it.

We can explain the failure of the Supreme Court in Roe using additional legal arguments as well.

The case involved a challenge to a Texas statute that criminalized abortion, which means that Norma McCorvey (aka Roe) filed suit claiming an infringement of an essential (liberty) right protected by the 14th Amendment. Challenges to state law claiming a violation of civil rights or liberty rights recognized by the Bill of Rights are brought under the Due Process Clause of 14th Amendment. Over the years since it was adopted, the Supreme Court has used the Due Process Clause of the 14th Amendment to “incorporate” the liberty rights of the US Bill of Rights as against the states; that is, if the federal government cannot infringe on our religious liberty than neither can the states, if the federal government cannot ban firearms, neither can the states, and so forth and so on.

The 14th Amendment reads:

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.

As the Court had noted, it first had to determine if the unborn are considered “persons” within the meaning of the 14th Amendment. It concluded that they were not.

If the Court would have exercised proper interpretation authority and followed its own established 14th Amendment jurisprudence (precedent), it would have taken an originalist approach to the analysis, and the outcome would have been quite different (although not ultimately providing for the right of women to have an abortion; the decision would have been left to the states themselves).

Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written)  A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?”  And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

Josh Craddick, a Harvard Law student recently had a Law Review article published in which he looked into the definition of “persons.”  In his article (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”), he noted that layman’s dictionaries at the time of the adoption of the 14th Amendment (adopted on July 28, 1868) treated the concepts of humanity and personhood interchangeably. He also consulted William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking, was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions. It is cited at least 10-12 times each year. Blackstone expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard:  “Where life can be shown to exist, legal personhood exists” (emphasis added). A look back through history shows that there were no laws to specifically protect the unborn prior to “quickening” (when the mother feels the baby begin to kick and move around) and prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.”  A pregnant woman was carrying a “life,” and hence she was carrying a new person.

With respect to the second question (“Was abortion considered an essential/fundamental liberty right back in 1868?”), Craddick researched the societal view of abortion back in the day.  In his article, he showed that many of the states that voted to ratify the 14th Amendment had laws criminalizing abortion. What does that mean?  It seems to confirm that at the time, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it.  It shows that society in 1868 viewed personhood and life in much the same way that pro-lifers understand.

Craddick wrote:

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ There can be no doubt whatsoever that the word ‘person’ referred to the fetus.” Twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The only plausible explanation for this phenomenon is that the legislatures considered the mother and child to be equal in their personhood. Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

Craddick went on to point out that even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with fertilization. Imagine that !!

Sadly, we all know the reasons the justices of the Supreme Court made that colossally-erroneous assumption that “personhood” means “someone who walks around, who has an independent life outside a woman’s womb.” First, the Court knew that society couldn’t be responsible for all the unwanted births; the burden they would impose on society would break our system of welfare and social services. Second, the case moved up through the court system at a time when the Women’s Rights Movement was fighting for equality in the workplace and in the home, with equality resting squarely on her ability to determine when, or if, she would reproduce. A woman could not control her career, her future, or even her burden at home if she were to be held hostage by her uterus and her God-given ability to bring forth new life. The Court, obsessed with social justice and equality, saw the case as one to give the Women’s Rights Movement what it wanted – the ability to finally be equal in the workforce.

I think the abortion discussion in our country needs to go in this general direction –  going back to a proper, more originalist and textualist analysis of what the right is or what it should be, and to replace the erroneous assumption that a “person” (for 14th Amendment purposes) is one that is capable of living and functioning outside the womb to the definition in place at the time the amendment was adopted, which was the start of life. Only by honoring the definition in place at the time do we know exactly which classes of individuals were intended to be covered by it – to have their rights and privileges acknowledged and protected.  Our national-level pro-life activism needs to go in this direction if we can ever hope of limiting the number of abortions, of limiting the number of unborn babies killed, and of educating our girls and young women on being responsible with their bodies.

As I mentioned earlier, the New York “late-term abortion” law has renewed great controversy on the topic of abortion. The sense that I am getting is that the controversy is not necessarily about women having the right to abort an inconvenient pregnancy but about how expansive that right is and whether it needs reasonable limitations. After all, none of the “actual” rights embraced in our Bill of Rights, such as the right to exercise one’s religion freely, the right of free speech, the second amendment, the fourth amendment, etc are without limitations.

I think a case can be made that the right needs limitations, and if that can be achieved, then women can be both pro-life and pro-choice, if that makes any sense.  If we look at a “Balancing of Rights” approach rather than a “Balancing of Interests” approach – that is, if we balance the rights of the woman to control her reproduction with the big daddy of them all, the right to life, of the unborn child, rather than balance the rights of the woman to terminate her pregnancy with the interest of the state in protecting the pregnancy – then we will come to a point in the pregnancy when the developing fetus becomes a “life.” At that point, society can then legally deny abortions (except for situations such as rape, incest, or risk to the woman’s life).  A woman will enjoy a period of time to decide whether she wants to continue the pregnancy (hence, pro-choice), but if she waits too long, then she will not be able to abort the baby and will not be able to take a life (hence, pro-life).

My point in analyzing the Roe v. Wade case and in writing this article is to start a conversation and a debate that has us siding more with life and in finding ways to cut down on the innocent lives that are taken in the name of “women’s rights.”

With that in mind, I wanted to share some back-and-forth I’ve had with those who don’t exactly think like my on the issue of abortion.  I’ve cut and pasted my comments and the responses I’ve gotten from a social media post on a friend’s Facebook page announcing New York’s “Reproductive Health Act.”

ABORTION ARTICLE - John Tedesco post

MY COMMENT:   I hope the recent news out of New York of a “Late Term Abortion” law that passed, allowing for the termination of an unborn baby up until full term development, shocks your conscience. In a span of just 11 days, we heard national leaders like Rep. Nancy Pelosi and Sen. Chuck Schumer call a border wall to stop the flood of deadly drugs and human trafficking immoral” while an entire state believes it is moral to kill a baby up until the moment it takes its very first breath of air. I struggle, as a human being and as a woman, to find any logic remaining in this country. If any of our legislatures only had the decency to pass a law to define life, even if it is at 8-12 weeks, then the number of abortions would be greatly decreased.  That’s all it would take to stop the wholesale killing of the unborn. But no legislature, including the US Congress, seems willing to do it. It would force women to make the decision to abort the fetus inside them very early on, hopefully before a heartbeat and the commitment to a human life. I don’t think I’m unreasonable or out of line in taking this position.

VINNY (responding to me):  It’s a woman’s body. She should have complete control over it.  It’s not a hard concept.

MY RESPONSE (to Vinny):  That’s a very selfish and narrow-minded way to look at it. Plus it totally ignores the role women play in the grand scheme of things, as created by God for the primary purpose to propagate the human race.  Democrats and liberals refer to abortion in terms of “reproductive health” and as a “woman’s right to control her reproduction.”  It is never put in terms of what it does to the developing fetus or the unborn child, which is death. Why isn’t the bill titled “The Unborn Have no Right to Life” Law?

VINNY (responding to me):  A woman needs to have the ability to control when she becomes a mother. A man never has to be burdened by a baby, and neither should a woman.

MY RESPONSE (to Vinny):  I know this sounds absolutely archaic to liberal women, but a woman has always had the right to control her reproductive capability. She has the right to keep her legs closed during her fertile days; she has the right to say no. She has the right to take contraceptive pills or use contraceptive devices. And if she uses neither, then she has the right to demand that her sex partner wear a condom or forego fooling around. All of these PREVENT conception and allow a woman to control her reproduction rights. All of these PREVENT the immoral act of killing a living fetus on its way to developing into a human being. Again, I know this sounds archaic and to the liberal woman, presents too many barriers to a loose and casual lifestyle and to spontaneous sex with someone they just met. But in the balance of things – prevention vs. harm – I think we can all agree that prevention is the best course. God and nature gave women the blessing of giving life and propagating the species; He didn’t intend for her to have the unfettered right to fornicate without consequences. The consequence is the greatest privilege of all — to create new life. It’s so sad so many women think of it as a nuisance and a burden..  as a curse.

COMMENT from Konabird2:  As one individual said last night, “A clump of cells feels no pain.” How did we get to the point where as refer to a baby as merely “a clump of cells” ?

MY RESPONSE (to Konabird2):  To a woman or girl who doesn’t want the pregnancy, what she is carrying is just “a clump of cells.”  To a woman who wants the pregnancy, the minute she sees that blue line, she immediately begins to call her fetus a “baby.”  It all depends on the woman’s intention with her pregnancy.

COMMENT from Sandy S:  This is a dishonest strawman argument. The two circumstances are entirely different save chemicals are involved in both and in cleaning toilets and killing germs.. Let’s talk about when a person is a person or how do we take care of all the unwanted  children that no abortion laws are going to have to be raised. Those are real questions

MY RESPONSE (to Sandy S):  Sandy,  I agree with you that we can’t take care of all the unwanted children that, without abortion, would be born. They would be born to those that don’t want them, can’t take care of them, are mentally and psychologically unfit to raise them, or who will simply abuse and ignore them. In all of these situations, the child will not be raised properly and will likely be “damaged goods.” They will also be born to those who can’t afford to raise them, which will in turn become another burden on taxpayers. Taken together,  if all the babies conceived were to be born our resources and our services would be burdened to the point where it fatally strains our system. This was actually predicted by economists Cloward and Piven many years ago. My point is that women MUST do their part in preventing the killing of babies by preventing the creation of them in the first place. They have it within their power to do so. We can’t accept the notion that just because we can’t provide for all the unwanted babies that we should allow them to be killed at any time up until the moment of their birth.

Sandy S (responding to me):  Is fetal heartbeat the gauge of living. When the child cannot survive without the mothers body?  Is life only at birth when a child can breathe on its own? I’m not sure if i want government making that decision anyway, as the mother is closest and most involved with the real consequences of the decision. Shouldn’t it be up to her alone? Unfortunately, lots of people want to step in and tell others what to do, how to live and love, how to die, and who to worship. It’s kind of amazing how important some people think their opinion should be held in absolute regard.

MY RESPONSE (back to Sandy S):  I think science can help make the decision. A woman who wants an abortion bad enough will not be fair to the life inside her. My point is that having an honest debate on a law to define life (in order to stop the killing of the unborn) is a better route by far than allowing the torture and killing of an unborn child up until the moment he/she takes it first breath. It is a negotiated solution to a problem that as it stands now totally ignores the rights of a newly developed human being.

COMMENT from Bloody Roses:  What about rape and sexual abuse? Also, not all sexual relations are for reproductive reasons…  Woman are allowed sexual pleasure and orgasms too.

MY RESPONSE (to Bloody Roses):  Rape and sexual assault get special consideration, as they have always gotten special consideration and exceptions in society. No one is denying women  are allowed sexual pleasure…  this issue isn’t about that. It’s about balancing the desires and sexual freedom with nature’s limits on, and purposes for, women I order that we don’t unnecessarily kill the unborn.

COMMENT from Grace Madej:  But I thought y’all were AGAINST birth control?

MY RESPONSE (to Grace Madej):  WHO is against birth control??  Are you talking about strict Catholics??  I happen to be Catholic but I’m also a realist. I think we absolutely need birth control in our society. We can’t be naive to think we live in a world long gone where women save themselves for their husbands and welcome every act of sex as a chance to have another child. If we are naive to think birth control is a sin, then we have to accept the far greater sin of abortion and the chance that a good percentage of those abortions were performed on fully-formed living, yet not ready to live out of the womb, human beings. I’m not naive about conception and fetal development . I know that a fertilized egg goes on to become a mass of cells and even up to a few weeks it is not fully committed or destined for life. I’ve had 3 miscarriages, including one in my second trimester, so I know that not every conception event equals life. My heartfelt point and goal is to see our national conscience relieved by putting more pressure on women to do the right thing and if they believe a pregnancy is wrong for them and that they can’t be the parent God and nature intended them to be (or they don’t want to carry a baby to term and give it up for someone else to love), then  they should make that decision very early on. I think that’s where our counseling and our conversations about abortion should be focused. It’s just my opinion, of course.

 

We need to have conversations.  We need to find common ground.  We can’t continue to offend so greatly our national conscience.

One final thing to wrap your mind around —  The same state (New York) that has just passed the “late-term abortion” bill has abolished capital punishment. The state says it is unconstitutional to kill a person guilty of a capital offense but constitutional for a woman to kill her baby.

The state can’t impose the death penalty on even the most vile and heinous of criminals, but a woman can impose the death penalty on the most innocent and harmless of human beings. “You are not allowed to give a lethal injection to convicted serial killers, pedophiles, rapists, school shooters, or any other species of monster. But you can give a lethal injection to an infant. Indeed, you can only give lethal injections to infants in New York. The crime of child rape will not earn you the needle. The crime of being conceived in the wrong womb might. It is a capital offense, and you may well be made to suffer dearly for it.”  (Matt Walsh).

The hypocrisy is unreal. But that’s what defines progressives and extreme women’s rights supporters.

 

- 000000 (3)

References:

Roe v. Wade, 410 U,S. 113 (1973), Majority Opinion, written by Justice Harry Blackmun, Cornell Law Library –  https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZO

Roe v. Wade, 410 U,S. 113 (1973), Dissenting Opinion, written by Justice William Rehnquist, Cornell Law Library –  https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZD

Roe v. Wade, Dissenting Opinion, by Justice Byron White –  https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White   and https://www.scribd.com/document/217330653/Dissent-White

West Alabama Women’s Center v. Thomas Miller, 11t Circuit Court of Appeals opinion –  http://media.ca11.uscourts.gov/opinions/pub/files/201715208.pdf

Laurie Higgins, “31 States Permit Full-Term Abortions,” Illinois Family Institute, January 28, 2019.  Referenced at:  https://illinoisfamily.org/life/31-states-permit-full-term-babies-to-be-killed-in-the-womb-for-virtually-any-or-no-reason/

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017).  Referenced at:  file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf    [Abstract:  What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?  The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

Calvin Freiburger, “Article in Harvard Law Journal Concludes: The Preborn Child is a Constitutional Person,” Live Action, June 1, 2017.  Referenced at:  https://www.liveaction.org/news/landmark-harvard-essay-preborn-child-constitutional-person/

Steven Ertelt, “You Can’t Give a Lethal Injection to Murderers in New York, But You Can Give One to an Unborn Baby,” LifeNews.com, January 24, 2019.   Referenced at:  https://www.lifenews.com/2019/01/24/you-cant-give-a-lethal-injection-to-murderers-in-new-york-but-you-can-give-one-to-an-unborn-baby/?fbclid=IwAR1_9ePUFqddWs1TwqdaoVFNkW06v9xqJXkja9Y4yPLfYVhSbZLHOKi2K2Q

Matt Walsh, “WALSH: You Can’t Give A Lethal Injection To Criminals In New York But You Can Give It To Infants,” DailyWire, January 23, 2019.  Referenced at:  https://www.dailywire.com/news/42538/walsh-you-cant-give-lethal-injection-criminals-new-matt-walsh?utm_source=facebook&utm_medium=social&utm_campaign=mattwalsh

VIDEO:   Dr. Anthony Levatino, former abortion doctor, explains that abortion is never medically necessary to save a woman’s life during pregnancy – https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig   [Let me illustrate with a real-life case that I managed while at the Albany Medical Center. A patient arrived one night at 28 weeks gestation with severe pre-eclampsia or toxemia. Her blood pressure on admission was 220/160. A normal blood pressure is approximately 120/80. This patient’s pregnancy was a threat to her life and the life of her unborn child. She could very well be minutes or hours away from a major stroke. This case was managed successfully by rapidly stabilizing the patient’s blood pressure and “terminating” her pregnancy by Cesarean section. She and her baby did well. This is a typical case in the world of high-risk obstetrics. In most such cases, any attempt to perform an abortion “to save the mother’s life” would entail undue and dangerous delay in providing appropriate, truly life-saving care. During my time at Albany Medical Center I managed hundreds of such cases by “terminating” pregnancies to save mother’s lives. In all those cases, the number of unborn children that I had to deliberately kill was zero.]

CHART:  State-by-State Later Term Abortion Policies –  https://www.kff.org/womens-health-policy/state-indicator/later-term-abortions/?currentTimeframe=0&selectedDistributions=state-prohibits-some-abortions-after-a-certain-point-in-pregnancy–threshold-for-later-term-abortions–later-term-abortion-permitted-when-pregnancy-threatens-womans&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D   [By the way, it appears that North Carolina, it appears from the chart (updated 2018) that North Carolina permits a later-term abortion “for life and health,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, and for age or for stress. North Carolina joins 23 other states that apply this lower standard for a later-term abortion – Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare that standard to the more strict one, which permits a woman to have a later-term abortion “for life and physical health.”  Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.  There are 3 states that permit a later-term abortion only when the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.]

Alabama “Unborn Child Protection from Dismemberment Abortion” Act (SB363) –  https://rewire.news/legislative-tracker/law/alabama-unborn-child-protection-dismemberment-abortion-act-sb-363/

Brandon Moseley, “Federal Court Strikes Down an Alabama Abortion Law,” Alabama Reporter, August 23, 2018.  Referenced at:  https://www.alreporter.com/2018/08/23/federal-court-strikes-down-an-alabama-abortion-law/

GHI Breborowicz,” Early Pregnancy: Limits of Fetal Viability and Its Enhancement,” NCBI (National Center for Biotechnology Information), January 5, 2011; pp. 49-50.  Referenced at:   https://www.ncbi.nlm.nih.gov/pubmed/11753511     [“Viability” of a fetus, or “fetal viability,” means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. Consequently, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors. It is only in virtue of both factors that a viable fetus can exist ex utero and thus later achieve independent moral status. Moreover, these two factors do not exist as a function of the autonomy of the pregnant woman. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and later achieve independent human status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient. In the United States viability presently occurs at approximately 24 weeks of gestational age (Chervenak, L.B. McCullough; Textbook of Perinatal Medicine, 1998)].

“Can a Fetus Feel Pain?,” NCBI (National Center for Biotechnology Information), April 15, 2006; 332 (7546): 909–912.  Referenced at:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/

“How Your Fetus Grows During Pregnancy,” American College of Obstetricians & Gynecologists (ACOG),  (April 2018).  Referenced at:   https://www.acog.org/Patients/FAQs/How-Your-Fetus-Grows-During-Pregnancy?IsMobileSet=false

Traci DeVette Griggs, “New York’s War on Children Hits a New Low on Anniversary of Roe v. Wade,” Family Policy Facts (NC Family Policy Council), January 23, 2019.  Referenced at:  https://www.ncfamily.org/new-yorks-war-on-children-hits-a-new-low-on-anniversary-of-roe-v-wade/

Roe v. Wade, Texas Bar –  https://www.texasbar.com/civics/High%20School%20cases/roe-v-wade.html

Roe v. Wade (1973), as explained by Clarke Forsythe, Senior Counsel for Americans United for Life (AUL) and Melissa Murray, Berkeley Law School professor.  [Clarke Forsythe is also the author of the book Abuse of Discretion: The Inside Story of Roe V. Wade, and Ms. Melissa Murray in addition to being a law school professor, also as the Faculty Director for the Center for Reproductive Rights and Justice].  Referenced at:  https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/amendments-due-process-and-the-right-to-privacy/v/roe-v-wade    [See Appendix below for a transcript of this video]

 

APPENDIX:  (Transcript of the Khan Academy Video, as modified by Diane Rufino, to add more information)

Question:  “Mr. Forsythe, could you set the stage for us a little bit. What was going on during this time period?”

Mr. Clarke:  “Well, there were efforts in the 1960s to repeal abortion laws in the individual states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973. Roe vs. Wade was the case from Texas.”

Ms. Murray:  “Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women’s rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman’s health or life, or in cases of rape, incest, or fetal anomaly.”

Mr. Clarke:  “Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law [ie,  They were looking for a “test case”]. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy.”

Ms. Murray:  “And so Norma McCorvey brought this case. She was an unmarried 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She gave birth to her first child, a daughter, and  ultimately signed over custody to her mother to raise her since her life wasn’t very stable (she was moving around a lot). She gave her second child up for adoption. When she found herself pregnant for a third time, she wasn’t willing to do either of these things again and so she simply wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century criminalized abortion in all cases except those instances where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then (that is, what her lawyers thought, and sought, to do), was to challenge the law as being unconstitutional. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. They sued the State of Texas to challenge the constitutionality of Texas’ criminal abortion ban.”

Mr. Clarke:  “But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As we all know, she never got an abortion. She gave birth and placed her child for adoption.”  [In the years after the decision, Norma had a complete change of heart and became a strong opponent of abortion].

Question:  “Okay, so Roe was Norma McCorvey. Who was Wade?”

Mr. Clarke:  “Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court.”

Questions:  “So the case eventually made it to the Supreme Court.  How did the Court rule?”

Mr. Clarke:  “The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th Amendment of the Constitution even though the 14th Amendment doesn’t say anything about abortion, or the unborn child; the 14th Amendment just uses the term liberty. Ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th Amendment.”

Question:  “That’s very interesting. I’ve learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there’s a penumbra of privacy that you see in a few ways. What was the Court’s reasoning that the right to an abortion could fall under this zone of privacy?”

Mr. Clarke:  “If you read the Roe opinion – specifically, on page 152 of the Roe opinion – Justice Blackmun starts out by citing a string of prior Supreme Court cases, beginning about 1910, which elude to a right of privacy which undergirds other rights in the Bill of Rights. Blackmun argued that these cases lead to a general right of privacy, and that this right of privacy is broad enough to encompass a woman’s right to an abortion. But then four pages later, on page 156, Blackmun turns around and says that abortion is inherently different from all those other cases that make up the right of privacy (including the right to use contraception and contraceptive devices to control fertility and reproduction, Griswold v. Connecticut (1965) because it involves the taking of a life.”

Ms. Murray:  “The right of privacy doesn’t actually come from Roe vs. Wade. It comes from a case decided about eight years earlier, in 1965, called Griswold vs. Connecticut.  The issue in the Griswold case was whether a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception violated the Constitution. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed. They challenged the statute, arguing that the right to use contraception was a fundamental individual right. Furthermore, they argued that since individuals have the right to use contraception, doctors also have the right to advise patients about such. Patients are entitled to be informed about their medical choices. The Supreme Court, in an opinion authored by Justice William Douglas, agreed with the clinic. In the Griswold case, the Court articulated for the first time this right of privacy. The opinion explained that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (the right to conscience created by the right to worship freely), the Third (the right to be free in one’s home from the quartering of troops), the Fourth (the right to be safe and secure in one’s own person, one’s home, and with one’s effects from unreasonable government searches and seizures), and the Ninth Amendments create the right to privacy which encompasses marital relations. Douglas, writing for the majority, indicated that this right had actually ‘been percolating in the Court’s decisions for some time.’”

Question:  “Did any of the Justices dissent in the Roe decision and if so, why?”

Mr. Clarke:  “Well there were two dissents, one by Justice White and the other by Justice Rehnquist. Justice White said that the Court was engaging in raw judicial power (ie, judicial activism) and that the Justices did not have the right or the authority, on account of the 10th Amendment, to strike down the abortion laws of the individual states: it could only rely on a doctrine called ‘substantive due process.’ The justices were addressing the assertion that a woman’s right to an abortion is a fundamental right and hence, under the Due Process Clause of the 14th Amendment, it cannot be violated or burdened.  The Due Process Clause says that no person can be deprived of “life, liberty, or property, without due process of law.” However, there are clear limits as to which individual “liberty” rights are imposed on a state (that is, those which it is obligated to respect and refrain from regulating). In in 1934, the Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”  In other words, as explained further by the Court, the right must have been recognized as a liberty right (essential to our sense of ordered liberty) at the time of the adoption of the 14th Amendment to be recognized by its Due Process Clause. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th Amendment in the 1860s and leading up to 1868, which is when the Amendment was added to the Constitution. In other words, this history was evidentiary history. As such, this history of state limits and prohibitions on abortion actually served to contradict the petitioner’s (the birth control clinic’s) assertion that the 14th Amendment was intended to include a right to abortion.”

Question:  “It appears that Roe is not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood vs. Casey, or Whole Woman’s Health vs. Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion?

Ms. Murray:  “As soon as Roe was decided in 1973, there was an effort to sort of roll it back and hem it in a little bit. Frank Church, who’s a Senator from Idaho, announced ‘The Church Amendment,’ which basically says that physicians don’t have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So we see one way to limit the reach of this right – by limiting the number of providers who are available to offer abortions.”

Mr. Clarke:  “In fact, the Court has kind of cut back on Roe vs. Wade in four cases over the years. But then in 2016, it appeared to return to its original position that the state nor federal government would tolerate any impermissible burden to a woman’s right to an abortion:

  • Harris vs. McRae [A 1980 case in which the Court acknowledged that federal funding could be limited for abortions. The Court held that states participating in the Medicaid program (established under Title XIX of the Social Security Act) were not obligated to fund medically necessary abortions. Title XIX of the Social Security Act was enacted to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. Beginning in 1976, Congress passed a number of versions of what was known as the “Hyde Amendment” which severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the Hyde Amendment, filing suit against Patricia R. Harris, the US Secretary of Health and Human Services. The Supreme Court found that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices”].
  • Planned Parenthood vs. Casey [A 1992 case in which the Supreme Court upheld various restrictions to an immediate abortion (an “abortion on demand”). The Pennsylvania state legislature amended its abortion control law in 1988 and 1989, to required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. In a bitter, 5-to-4 decision, the Supreme Court again re-affirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the Court imposed an articulable standard to determine the validity of laws restricting abortions. The standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on a woman’s right to an abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement]. Other similar cases involving restrictions on immediate access to an abortion reached the same conclusion.
  • Whole Woman’s Health versus Hellerstedt [In 2016, the Supreme Court flipped.  In this case, the Supreme Court was asked to rule on the constitutionality of a Texas law that put limits on physicians performing abortions and on the abortion facilities themselves. A group of abortion providers sued the state. In a 5-3 opinion authored by Justice Stephen Breyer (remember, Justice Scalia had passed in February or 2016 and so it was only an 8-member Court at the time) the Supreme Court noted that the provisions that were challenged did not actually offer the medical benefits that they claimed to offer. Hence, as a matter of constitutionality, they were insufficient to justify the burdens on access that each of those provisions imposed.

Question:  “What do you see as the future of Roe vs. Wade?”

Mr. Clarke:  “Well, the Supreme Court has failed as the national abortion control board. It cannot monitor abortion. It can’t intervene, it can’t regulate or legislate itself, it can’t act as public health administrators, and it can’t investigate. And so I believe it’s absolutely certain that the Court, sooner or later, will have to overturn the Roe decision because of this failure and return the matter to the states.”

Ms. Murray:  “Remember, when they were talking about repealing or reforming those abortion laws we referred to earlier, from the 1960s and 70s, it was connected in a big way to the growing women’s rights social movement. Perhaps the most critical question of that movement asked ‘What will be the role of women going forth in a modern society.’ When the question of contraception came before the Court in 1965, one of the questions was whether women should be allowed to control her reproduction and to choose when to have children….  Should she be allowed to control the timing of births in order to accommodate her career. It’s the same issue that came up in the abortion debate. If women were to have equal opportunities in the workforce, they would need to determine when they would become mothers and to determine the timing of their children. They would also need the flexibility to determine if they even wanted a child in the first place.”

Question:  “So we’ve learned that the decision to legalize abortion in Roe vs. Wade was based on the right of privacy, which the Supreme Court has inferred from the Due Process Clause of the 14th Amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children.

To learn more about his case, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources on US Government and Politics.

The Supreme Court Failed the Pro-Life Movement By Further Entrenching the Notion of a Woman’s Unfettered Right to Abortion Access

Supreme Court - abortion

by Diane Rufino

In March, the Supreme Court heard oral arguments for Whole Women’s Health v. Hellerstedt, the biggest abortion case in decades. The question before the court addressed the permissible or impermissible obstacles to a woman’s right to an abortion – or more correctly put: to abort and end the life of the fetus growing inside her. This was the question that faced the Supreme Court for the first time in the landmark case, Planned Parenthood of Southeastern Pennsylvania v. Casey, which was decided in 1992.

The Pennsylvania legislature amended its abortion law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. An appeal was made to the Supreme Court. In fleshing out the scope ofRoe v. Wade, the Court addressed this question: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe?

In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices. If you have any question what Judicial Activism looks like, this was it.

The case Whole Women’s Health v. Hellerstedt addressed a statue passed by the Texas legislature in 2013 – House Bill 2. House Bill 2 (HB2) required, among other things, that doctors performing the abortions have admitting privileges at local hospitals and that clinics meet the standards for ambulatory surgical centers (ASC), such as wider hallways, specifically sized “operating” rooms and other medically unnecessary building code rules — restrictions that have led clinics across the state to close. Texas clinic owner Amy Hagstrom Miller sued the state of Texas over the bill.

The justices asked such questions as what is the necessity of such a law and what exactly is its purpose, whether a woman seeking an abortion is presented with an undue burden by having to travel a bit further for the procedure if it means that the procedure is safer and the experience is better. Liberal Justice Ruth Bader Ginsberg, a staunch defender of the unfettered access to an abortion and the unfettered right of a woman to control her fertility and reproduction, asked: “What is the benefit of having to go to an ambulatory surgical center to take two pills?” She was questioning the medical necessity of the law.


On June 27, the Supreme Court handed down its decision. In a 5-3 split of the justices, the Court concluded that the provisions of HB2 do not offer medical benefits sufficient to justify the burdens they place on a woman’s access to an abortion. Each provision places a substantial obstacle in the path of women seeking an abortion and therefore acts as an impermissible – unconstitutional – undue burden on abortion rights. [Decision at: http://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf%5D

Unfortunately, the debate among the Justices and the decision itself was likely diminished by the death of Justice Antonin Scalia in February.

In his article “SCOTUS and Abortion: Three Failures and Opportunities for the Pro-Life Movement” (July 1, 2016), Harvard Law student Josh Craddock writes: “There comes a time where gross disregard for human life and for our constitutional order should stir us from docile obedience and impel us to resistance.”

In his article, Craddock criticizes the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt and explains how it exposes three failures and opportunities for the pro-life movement.

With respect to the failures and opportunities, he writes:

First, a pro-life strategy of compromise-rather than principle-has failed to convince the public or the courts. This offers the opportunity to refocus our efforts on the ultimate goal of the pro-life movement. Second, Republican judicial nominations have failed to overturn unconstitutional pro-abortion precedents and have even contributed to them. This offers the opportunity to eschew blind partisanship and to create constructive social tension that prompts political change. And third, our constitutional system has failed to constrain the judiciary. This offers the opportunity for lesser magistrates to resist unjust edicts.

An honest assessment of these failures and opportunities should convince those who are committed to the pro-life cause that the time has come to stop compromising. We must demand that our political leaders end the legally sanctioned killing of unborn children.

A Strategy of Compromise Has Failed

The Hellerstedt decision reaffirmed that any significant impediment to abortion will be struck down under the existing judicial regime, even regulations designed to keep abortion “safe, legal, and rare” (a goal that has been embarrassingly adopted by many pro-life leaders). Such regulations, even if upheld, merely serve to sanitize abortion in the public eye. “At least there are no more Gosnells,” the well-intentioned public might say, as the local abortionist with hospital admitting privileges commits the same atrocities legally in a regulated clinic.

Those who are serious about ending abortion need to acknowledge that laboring within the confines of Casey is futile. Hellerstedt proves that approach will never achieve abolition. We cannot satisfy ourselves with petty regulations on abortion that trim the abortion weed while strengthening its root.

Instead, we should seize the opportunity to smash the existing legal paradigm by transforming the cultural and political landscape. The personhood movement is one such example. Traditional wisdom (and Gallup polling) suggested that only 15 to 20 percent of Americans would support a total abortion ban, but more than twice that many actually voted in various states to recognize the personhood of the preborn and ban abortion. In 2006, 44 percent of South Dakota voters supported a total abortion ban. In 2011, 42 percent of Mississippians voted for personhood and against abortion in all cases. And in 2014, 36 percent of Colorado voters supported an initiative to criminalize all fetal homicide, without exceptions for abortion. This is, of course, not the only strategy to end abortion. But it is illustrative of the bold, principled tactics and messaging that will be required to do so.

Instead of relying on vague language about women’s health and safety as they seek to kill their children or on the argument that some preborn children feel pain, we need to refocus the pro-life message on the inherent dignity of the human person from conception to natural death. We must take active steps to protect preborn children by love and by law, without exception or compromise.

Republican Judicial Nominations Have Failed

Justice Kennedy, reprising his role from Casey, joined the Hellerstedt opinion in favor of more expansive abortion access. That shouldn’t surprise us. In 2007, he authored the abortion procedure manual known as Gonzales v. Carhart, which advised abortionists to find “less shocking methods to abort the fetus” and suggested various dismemberment techniques that would skirt the Partial Birth Abortion Ban.

We shouldn’t be scammed and scared into voting Republican in order to get conservative Supreme Court justices. While it’s true that the three justices who would return the question of abortion to the voters have been appointed by Republican presidents, it’s also true that Republicans have appointed even more justices who think the Constitution requires abortion. Think of Stevens, Souter, O’Connor, and Kennedy. All three justices responsible for the plurality opinion in Casey were appointed by Republican presidents. Color me an extreme skeptic that a President Trump is going to do any better.

Instead of putting our hope in the Republican Party and the Supreme Court, we have the opportunity to increase social tension over child-killing. Human rights movements have the tendency of making opinions and policies irrelevant, as the world’s repudiation of slavery over a century ago makes clear. America did not confront the brutality of slavery until abolitionists like William Lloyd Garrison made it inescapable.

Garrison considered constructive social tension to be a vital element of cultural and legal reform. As a non-violent agitator, Garrison was able to clarify the perils of wrong or weak choices in a way that many politicians could not. He pushed the well-intentioned toward firmer statements and action by making complacency unbearable. Garrison understood that abolition had to accomplish a moral revolution before it could effect a political one, for “only an aroused public conscience could persuade legislators to withdraw protection from slavery.”

Following Garrison’s example, we must ensure that there can be no child-killing with tranquility. We must be unrelenting, so that purportedly pro-life candidates, pastors, priests, and persons of influence cannot comfortably coexist with legalized abortion. We must not retreat from voting and politics-far from it. Instead, we should engage with politics in a way that demands principled leadership, especially from Republican politicians. If they won’t provide it, we shouldn’t provide our votes. When the people lead, the leaders will follow.

Our Constitutional System Has Failed

We are no longer a nation governed by laws rather than by men. As Justice Thomas said in his Hellerstedt dissent (quoting Justice Scalia), “we have passed the point where ‘law,’ properly speaking, has any further application.” The way in which the Hellerstedt majority mangled the law to achieve its preferred outcome was transparently contrived and deliberately dishonest.

The Supreme Court has long since undermined its own legitimacy as a fair and neutral arbiter. Last year’s ruling in Obergefell, as well as so many others, have exposed the Court as nothing more than another political branch-a robed oligarchy that has unconstitutionally aggrandized itself through the false doctrine of judicial supremacy and cloaked its unconstrained willfulness in the language of law.

Our Founding Fathers understood that judicial supremacy was incompatible with the preservation of self-government. To “consider the judges as the ultimate arbiters of all constitutional questions,” Thomas Jefferson wrote, would be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” When judicial supremacy is combined with an utter disregard for our constitutional text, the “supreme law of the land” becomes nothing more than the fiat of five lawyers.

This naked power grab presents elected and appointed leaders with an opportunity to disregard and resist the Court’s unjust and illegitimate rulings. Although we ought not lightly upend our judicial system, there comes a time when gross disregard for human life and for our constitutional order should stir us from docile obedience and impel us to resistance.

Just as Lincoln denied the force of the Dred Scott decision to settle the question of black citizenship, so too must state governors and other officials who have sworn oaths to uphold our Constitution deny the force of the Supreme Court opinions to settle the question of preborn humanity. Governors in particular should reassert the rightful status of their states in our federal system and take action to protect every innocent human being in their jurisdictions. We should encourage officials to stand against the judiciary’s unlawful and unjust decrees and rally behind those who do.

*** Josh Craddock is a student at Harvard Law School. He formerly served as the vice president of Personhood USA.

Reference: Josh Craddock, “SCOTUS and Abortion: Three Failures and Opportunities for the Pro-Life Movement,” The Witherspoon Institute, The Public Discourse, July 1, 2016. http://www.thepublicdiscourse.com/2016/07/17284/?utm_source=The+Witherspoon+Institute&utm_campaign=f20712aec5-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_15ce6af37b-f20712aec5-84177661