More Evidence That Roe Should Be Overturned

The Roe decision by Justice Blackmun, as well as the dissents by then‐Justice Rehnquist and Justice White, with which Justice Scalia agreed, “are constitutionally unsound.” All permit “violation of the fetus’s constitutionally protected right to life without due process of law.” Returning abortion policy to the states would “leave considerable doubt as to the extent to which human life would receive affirmative protection under the laws of the several states.” The extent to which prenatal life would be protected or not would be dictated by “political pressure and popular sentiment,” potentially “constitutionaliz[ing] the mass murder of millions” of human beings in the womb.

…Tragically, Roe v. Wade allowed the judiciary to regulate which classes are worthy of receiving the “protection of fundamental liberties.” Bound only by its own sense of self‐ restraint, the Court asserted its absolute authority to define “‘person’ narrowly to fit its perceptions of acceptable public policy” and to “control[] the applicability of the due process clause to specific classes.” The Supreme Court’s abortion jurisprudence demonstrates the need to reexamine the Court’s role as “sole arbiter of the existence of fundamental rights” based on “its own perception of the relative worth of the parties whose rights are asserted.”

Until the Court, the people, or their elected representatives dismantle the “discriminatory legal system of separate and unequal” treatment for unborn human beings, there can be no true equal protection under the law.197 The legal regime that discriminates against preborn human beings should be abolished on originalist grounds. Until all human beings are recognized as legal persons, bringing science and law into consonance, “the dissonance between truth and fiction will in‐
increase, rather than diminish.

Joshua J. Craddock,Protecting Prenatal Persons,” Harvard Journal of Law & Public Policy 40.2 (2017): 539–72.

NOTE

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5 comments

  1. I hesitated, but I decided to say the following.

    Leaving aside whether it is immoral or not, is it not reasonable, by virtue of the context in which it was written and it’s absence in the Constitution, to conclude that there is no specific or implied protection for a fetus from the progenitors in the Constitution? Is it not reasonable to view it as a flawed document or intentionally silent, and that sometimes it needs to be altered? Or perhaps because it is difficult to change, almost everyone prefers to reinterpret it and import ideas foreign to the authors?

    The Constitution was authored by men who did not see it fit to ensure a whole group of people would be considered equal; additionally, they did not see it fit to ensure protection for those people, protections which they considered themselves worthy to have. In light of this, it seems perfectly reasonable to conclude that they did not care to extend protection to the unborn. So pro-life activists must import their ideas, whether from our own time or philosophical assumptions, back to a document they did not author.

    I think I am justified in my views when even Bork says:

    “Again and again, pro-life advocates have said that the constitutional guarantee that life not be taken without due process of law, found in both the Fifth Amendment, ratified in 1791, and the Fourteenth Amendment, ratified in 1868, means, properly interpreted, that unborn children may not be deprived of life by abortion. That reading seems to me absurd. I think it clear that the Constitution has nothing to say about abortion, one way or the other, leaving the issue, as the Constitution leaves most moral questions, to democratic determination.”

    Bork goes on to say that concerning science and the related amendments:
    “The constitutional question is not what biological science tells us today about when human life begins. No doubt conception is the moment. The issue, instead, is what the proponents and ratifiers of the Fifth and Fourteenth Amendments understood themselves to be doing. It is clear that the Fifth Amendment’s due process clause was intended to guarantee that no one be deprived by the federal government of life, liberty, or property without regular procedures. The Fourteenth Amendment made that guarantee applicable against the states.”

    Notice how the 14th Amendment made something applicable to the states what was not applicable to them before.

    Bork goes on to say after this:
    “Can those guarantees of fair and regular procedures be read as applying to unborn children who are deprived of life? Certainly not. When the two Amendments were proposed and ratified, abortion was known, had been known for millennia, and there had been arguments about whether life began at quickening or some other stage prior to birth. No one concerned in the adoption of these Amendments could have been ignorant of the fact that life did or could exist at some time prior to birth. Thus, if they intended to protect all human life, they would have known that the Amendments did, or very probably would, prohibit some category of abortions. It passes belief that nobody would have said so or raised the question for discussion, but the records are bare of any such question or discussion. The conclusion can only be that those who adopted these Amendments addressed only the rights of persons who had been born.”
    https://www.firstthings.com/article/2003/01/002-constitutional-persons-an-exchange-on-abortion

    FYI, the link just links back to this website, and the page says “Page Not Found.”

    • Alberto,

      Your inference seems like sheer supposition: Since the founders did not do x, they did not do y. You’ve ignored all the evidence from the period to the contrary. Yes, the founders were pragmatists relative to slavery but that does not mean that they did not understand the humanity and therefore protected status of the unborn.

  2. Where’s the evidence from the period that abortion was considered at the Constitutional Convention? Where is the evidence that abortion was considered when the pertinent amendments were added? I can’t ignore something I’ve never seen or of which I have never heard. And it can’t be simply one or two making a comment about abortion; it needs to be with specific regard to the Constitution, and I would expect unanimity. I noticed your link does not work, so I went ahead and searched the article; I will try to read it in its entirety when I have time.

    I admit that my argument is probabilistic, up to a point, but that is the nature of an inductive argument. That doesn’t make it bad. I am also no expert in law or that period’s history. I’m attempting to reason from what I know, the context, my general sense of the times, and then attempt a reasonable conclusion; I am still open to changing my mind if good evidence that shows the contrary can be provided. That is why I also read and quoted what Bork said, since he is perhaps among the best (at least on the originalist side) sources that I know. However, if you want to argue with Bork, you won’t have an objection from me.

    Your description of the founders being “pragmatists” on slavery is bad in my opinion. If I didn’t know the kinds of things done, in particular the sexual exploitation of women and the keeping in servitude of slaves after death, both of which Jefferson is known to have done, then I could perhaps agree to such a description. In this matter concerning the founders and some of their successors, I am reminded what was said of certain monarchs as in 1 Kings 15:26: He did what was evil in the sight of the LORD and walked in the way of his father, and in his sin which he made Israel to sin.

  3. Wow, I finished reading it and Craddock’s argument is compelling. I didn’t change my mind concerning the American Founders, and Jefferson in particular. I changed my mind concerning the 14th Amendment and those who ratified it, which is the focus of his argument. I now do think the Constitution requires protection of the unborn. As Craddock wrote, “The Fourteenth Amendment was to be a new birth of freedom for all human beings.” It brightened my day.

    Unless it can be shown otherwise, every single justice since Roe has failed to recognize the personhood of the unborn (he cites Paul Linton for this). That was part of my incredulity at the beginning; I found it hard to believe that a Scalia or Bork would argue differently for such a hotly debated issue with enormous ramifications. I say this as an average Joe, and not a scholar of history or law; it behooves every single person that says the legality of abortion should be left to the states and democratic processes to answer Craddock line by line.

    Unfortunately, Craddock is probably correct when he says that, “In the absence of departmental enforcement of the Fourteenth Amendment’s guarantees, a new constitutional amendment explicitly protecting prenatal life is likely necessary.”

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