The stunning illogic of Roe v. Wade
In its 1973 Roe v. Wade decision, the U.S. Supreme Court struck down the laws against abortion in all 50 states. This decision is still the guiding precedent for the Supreme Court on abortion cases. Because of it, our nation continues to deny unborn human beings any rights whatsoever and allows (even encourages) their deliberate killing. As slavery was the central issue in the 19th century, so abortion is central in our time.
Writing for the majority in Roe, Justice Harry Blackmun claimed to find in the 14th Amendment an implicit right to abortion, when it said the state must not deprive a person of liberty without due process of law. That argument has been soundly refuted many times. But Blackmun’s most egregious errors occurred when he addressed the fetus’ personhood and humanity.
Texas (the defendant in this case) argued that the human fetus is a person and so deserves equal protection of the law, provided by laws banning abortion. Significantly, Blackmun admitted, “If this suggestion of personhood is established, then the case against striking down the abortion laws collapses.” However, he then argued that the word “person” is neither defined, nor used to refer to fetuses as persons in the Constitution, and so human fetuses are (he concluded) not persons in the Constitutional sense.
But this argument does not hold up. Nowhere in the Constitution are toddlers referred to as persons either, but one cannot deny they are persons in the Constitutional sense. Clearly, the word “person” is used in the Constitution as a descriptive term. That is, it refers to whatever can truly be called a person, whether the authors of that phrase had them explicitly in mind or not. Now, since human fetuses (unborn humans) are identical with beings who later quite clearly show they are persons — by reasoning, making deliberate choices, and so on — it follows that they are persons when in the womb, and so the 14th Amendment applies to them, and they deserve equal protection of the law.
Texas also rightly argued that, apart from the question of whether fetuses are persons according to the Constitution, they certainly are human beings, and the state has a compelling interest to protect every human being. Blackmun’s reply was stunning: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
But as a matter of fact science — embryology — does settle that issue: What is killed in abortion is without doubt a distinct, living human individual. (There are different positions on whether this is a “person” — but it’s a matter of science that from conception on, what is growing within the womb is a distinct human being.)
Moreover, the question at issue is a practical one, not just theoretical. If it were a question only of theory — for example, what is matter? what is time? — we could suspend judgment. But this is a practical question about how we will treat a certain class of individuals. The question is: Should we treat unborn human individuals as the same kind of beings as ourselves or not? The United States must settle this issue: It will either treat the unborn as human beings, deserving of equal protection of the law or not. So Blackmun saying the Court would not settle the issue was simply false. By striking down abortion laws, the Court determined that unborn human life would from then on be treated as mere sub-personal objects.
What should Blackmun have concluded? First, even if he stuck to his erroneous view that there was no consensus on the question whether the fetus is a human being, the Court should have left the issue to legislators, recognizing the limits of the judiciary’s role (its role is only to interpret the Constitution and the law, not make it).
But even at that time there was — and still is — a consensus in science. Blackmun should have therefore concluded that since what is killed in abortion is in fact a human being — as determined by the science of embryology — to deny unborn human beings the equal protection of the law is unconstitutional.
May the Lord help us! A civilization cannot long survive — or deserve to —that relegates a whole class of human beings (in this case unborn human beings) to the status of mere objects that can be shredded and then thrown into the trash can.
PATRICK LEE, PH.D.,is the John N. and Jamie D. McAleer Professor of Bioethics and the director of the Institute of Bioethics at Franciscan University of Steubenville.