Thursday, June 18, 2009

Abortion IV, Roe v. Wade, Doe v. Bolton, and the US Constitution

Many Americans may be surprised to know that Norma McCorvey (more commonly known as Jane Roe,) is currently an advocate of the pro-life agenda. In 2005 she petitioned to overturn Roe v. Wade only to have her request denied without opinion [18]. As I attested before, the cofounder of NARAL and previous owner of what was then the largest abortion clinic in the western hemisphere, Dr. Bernard Nathanson, also experienced a change of heart. His documentary, “The Silent Scream,” was shown at the White House and has since become a major tool of ‘pro-lifers,’ [19].

Norma McCorvey seems to have converted for emotional and religious reasons. Since her conversion to Catholicism in 1994 she has not only campaigned against ‘child-execution,’ she has also expressed her solidarity with pro-life extremist Christian organizations such as “Operation Rescue,” and claimed “I am not a lesbian anymore,” during an interview [20].

Dr. Bernard Nathanson is another story. Although he was raised Jewish and has also recently converted to Catholicism, Nathanson was an atheist when he flipped sides. He describes his change of heart as a ‘secular epiphany,’ in light of advances in science and medical technology [21].

Unfortunately for Nathanson and McCorvey the Supreme Court ruling in 1973 was not centered upon emotion, science, religion, or medical technology. Justice Blackmun acknowledged the cultural and religious difficulty of Roe v. Wade as well as the ambivalence of science present at that time, but nevertheless stressed that Roe v. Wade had to be decided by the constitution [22].

So, what was the exact constitutional premise of Roe v. Wade and was it valid? Well, according to Blackmun’s majority opinion:

“The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by a pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause[…]This right of privacy[… ] is broad enough to encompass a woman's decision whether or not to terminate her pregnancy,” [23].

There was also an argument that this same right could be derived from the bill of rights, but in Roe v. Wade’s sister case Doe v. Bolton, Blackmun delivered the majority opinion saying: “The Ninth Amendment obviously does not create federally enforceable rights,” [24].

In his Roe v. Wade opinion Blackmun also acknowledged that: “The Constitution does not explicitly mention any right of privacy.” [See source 23, paragraph one of section VIII].

Therefore the constitutionality of legal abortion lies solely on a concept supposedly implied in the Due Process Clause of the 14th Amendment but never specifically acknowledged in the United States Constitution. Yet, very few pro-life advocates challenge the postulate that we have a right to privacy and such a campaign would actually be legally futile.

The United States Supreme court is one of the most powerful bodies present in the legal system of any nation, and holds the frightening prerogative of constitutional interpretation. This was not amongst the Supreme Court’s original privileges but was attained in the 1819 case of McCulloch v. Maryland during which Chief Justice Marshall pointed out that the nature of our constitution:

“…requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves” [25]

The logic behind this is pretty simple. Imagine that you have a group of thirty-nine children, two adults, and four elderly individuals relying on you for sustenance. When it comes time to barter for victuals you will doubtlessly sit down and write up a grocery list. However, given the sheer girth of this particular family unit, it would require a very large sheet of paper to record each individual necessity; therefore, it is not mandatory that you record the obvious items. So, if you’ve included breakfast cereal on the list you can assume that milk is also required upon arriving at the store even if it is not physically scribbled into the note. In fact, it would be logical not to include milk on the grocery list since the presence of cereal on the list suggests the need of milk. Who wants to eat dry cereal?

So, whether or not Blackmun’s interpretation was correct is actually irrelevant. This is the American system. If we challenge abortion by attacking Blackmun’s postulate we must also argue that the system itself is flawed and that all rulings influenced by this element of the system are in fact also flawed. That’s a risky operation, especially sense many of the Supreme Court translations of the constitution were doubtlessly correct.

Peter Kreeft, a modern theologian and philosopher, has also touched up on this very concept. In a lecture on the prolife ideology Kreeft described an experience from some time earlier in his life. It seems he’d engaged in a debate with an intelligent feminist and challenged her to find “one argument that defends abortion that doesn’t also defend infanticide.” They argued for a time but made no progress and eventually went their separate ways. Later, the feminist returned with a change of heart. She explained to Peter that he’d convinced her and that she was now for infanticide. [26]

The story was very likely made up, a joke to break the tension while discussing a touchy topic. His approach nevertheless stands strong. It is not easy to find a logical argument for the destruction of prenatal-human life that cannot be extended to postnatal-human life.

We can say that while a fetus is a human it is not a person because it is not capable of independently living. In this case a person is defined by the technology available in his/her time and place of birth.

My cousin recently birthed her first child, the beautiful Kimberly (pictured above).Complications arose, however, when little Kimberly arrived premature. After the c-section she was immediately taken by the doctors and placed on a breathing apparatus. Without this machine she wouldn’t have been able to live outside the womb. So, had darling Kimberly been born in the Amazon rain forest she would not have been a person. Since she was born in the United States she is a person. North American postnatal human specimens are therefore more morally significant than South American postnatal human specimens. That’s bigotry, and while it may technically be true, very few people will make this concession.

There are also those who say that personhood begins on our first breath outside of the womb, in which case it’s decided by location. This is also bigotry. Should I say that human specimens located in Gaza Strip are not persons I’m a racist. When I act upon this postulate and begin to terminate the burdensome Palestinian Arabs in that area I’m a genocidal maniac. This argument also seems weak.

There are others that suggest that we are not persons until we become a part of the human culture, in which culture defines personhood and now we’ve run back into bigotry. It’s one culture with a position of power exterminating a lesser group of human beings-that’s genocide.

There is at least one argument left to us. That’s the constitutional argument. Why do we not consider the unborn human specimen’s rights when discussing abortion? To be blunt, the unborn human specimen does not have human rights-not constitutionally.

Section one of the fourteenth amendment states: “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.”

Just as it omits illegal immigrants and enemy POWs, the US Constitution fails to provide any protection for the rights of an unborn human specimen. Only the mother has constitutional rights; therefore, the conclusion is actually quite simple. Through the same logic presented in the Scott v. Sandford, abortion is in fact constitutionally sound. We may argue that the 14th amendment was not meant to be interpreted in this way, and we may be correct in this assumption. Yet, as demonstrated in Elk v. Wilkins, the 14th amendment wasn’t originally intended to include Native American’s either [28]. As it stands, if we rely on the intentions of the constitutional authors alone then all of the amendments are actually null, because these were tacked on later and not a recorded part of their original will with the constitution.

Therefore, I shall reiterate. The answer is simple. Legal abortion is a completely constitutional process, but does this justify the practice? Can’t this argument, for example, be extended to give any American the right to execute anybody who isn’t an American citizen? Is abortion ethical? Is it a violent crime against humanity? Is it genocide? I shall address such questions in my next segment.

[18] Harry, Lighthorse. "Norma McCorvey's Petition for Cert Denied Yesterday." Sic Semper Tyrannis. 23 Feb. 005. 16 June 2009 .
[19] DeParle, Jason. "Beyond the legal right; why liberals and feminists don't like to talk about the morality of abortion Washington Monthly Find Articles at BNET." Find Articles at BNET News Articles, Magazine Back Issues & Reference Articles on All Topics. Apr. 1989. BNET. Fall 2009 .
[20] Duin, Julian, and Ralph Z. Hallow. "Roe finds god, prays for life Insight on the News Find Articles at BNET." Find Articles at BNET News Articles, Magazine Back Issues & Reference Articles on All Topics. 19 Feb. 1996. BNET. 16 June 2009 .
[21] Dr. Nathanson Shares Conversion Story «." My Womanhood Journey. 2 Apr. 008. Wordpress. 15 June 2009 .
[22] "Roe v. Wade - MSN Encarta." MSN Encarta : Online Encyclopedia, Dictionary, Atlas, and Homework. 1993-2009. Microsoft Corp. 15 June 2009 .
[23] Roe v. Wade. No. 70-18. Supreme Court. 22 Jan. 1973.
[24] Doe v. Bolton. No. 70-40. Supreme Court. 22 Jan. 1973.
[25] Hughes, Charlse E. "The Court and Constitutional Interpretation." Supreme Court of the United States. Http:// 16 June 2009 .
[26] "The United States Constitution - The U.S. Constitution Online -" Index Page - The U.S. Constitution Online - 15 June 2009 .
[27] Kreeft, Peter. "Pro-Life Philosophy." The Official Peter Kreeft Site. 15 June 2009 .
[28] Eastman, John C. "From Feudalism to Consent : Rethinking Birthright Citizenship." The Heritage Foundation - Conservative Policy Research and Analysis. 30 Mar. 006. 15 June 2009

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