By Charles D. Dern Ph.D.
This January 22 marks 40 years since the Supreme Court
overruled existing statutes in all 50 states and declared abortion to be a
Constitutional right. When I first read Roe cover to cover some 25 years ago, I
steeled myself for what I was sure to be a very sophisticated and
well-thought-out argument as to why hundreds of years of jurisprudence that
tended to protect the unborn should be thrown away. I was incredibly
underwhelmed. As former Philadelphia Inquirer editorial page editor David R.
Boldt wrote upon Justice Harry Blackmun’s (Roe’s chief author) retirement “Good
riddance – he blew it on Roe.”
Roe famously argues that the “right to privacy” is
foundational to the abortion decision, but only after admitting that “The
Constitution does not explicitly mention any right of privacy.” Furthermore,
Blackmun merely hypothesizes that the right is in the “penumbra” (fringe of the
shadow of the) 14th or 9th Amendments. He wasn't sure! Roe
further complicates things by acknowledging that “The privacy right involved ...
cannot be said to be absolute” because “a State may properly assert important
interests in safeguarding health, in maintaining medical standards and in
protecting potential life.”
The state's ability to protect “potential life” is the
core of Roe’s problem. Roe defines potential life as the point at which the
unborn child can survive outside the womb, even with medical assistance. This
point, also called “viability," was set at 26 weeks gestation at Roe’s writing.
However, advancements in medical technology have moved viability to ever earlier
points in gestation. Consider that if technology were able to sustain unborn
humans outside the womb from the moment of fertilization, abortion could be
outlawed completely. Now-retired Justice Sandra Day O’Connor recognized this in
a later court case when she wrote that “The framework of Roe ... is on a
collision course with itself.”
Even after instituting “potential life” as its core
measure of fetal rights, Roe states, incredibly, that “We need not resolve the
difficult question of when life begins” because of disagreements among those in
medicine, theology and philosophy. Even if every theologian and philosopher
agreed that “life begins at conception” what weight would have it really
carried? And although those in medicine may have been validly confused in 1973,
the incredible advances in biology since then now leave no doubt whatsoever that
at the moment sperm and ovum meet, a new human life comes into
being.
Some cannot understand why we cannot just leave Roe as
“settled law.” But consider other Super Court decisions such as Plessey v.
Ferguson’s “separate but equal” doctrine, which thankfully was overturned by the
efforts of Thurgood Marshal in Brown v. Board of Education. (Paradoxically,
Marshal then voted in favor of Roe as a Supreme Court justice.) Overturning Roe
will not make abortion illegal. It will send the issue back to the states and
the laws in effect in 1973 presumably would be reinstated. More importantly it
would put the debate back into the hands of the people and the legislatures
where it always belonged.
Finally, there is a sad irony that, Barack Obama, who
refused as an Illinois state senator even to vote against a bill to outlaw the
heinous procedure known as partial birth abortion, is to be re-inaugurated on
Roe’s 40th anniversary. He is the head of the party which conjured up
the so-called “war on women” and yet thanks to that party, almost 30 million
American women are not alive today who might have been if they had not been
aborted. Here, 40 years hence, Roe v. Wade remains an intellectual house of
straw that should be burned to the ground by the scorching facts of science and
logic.
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