On Jan. 22, 1973, the U.S. Supreme Court legalized abortion in the controversial decision, Roe v. Wade. Women suddenly had a constitutional right to get an abortion for any reason, at any time during pregnancy. (While Roe gave states the right to ban or limit abortion in the third trimester if they had a “compelling state interest” unless the abortion is necessary for the health of the mother, the companion case, Doe v. Bolton, — which the Court said specifically should be taken together with Roe — defines health so broadly as to make the limitation meaningless.)
Thirty-five years later, we are still arguing over that profoundly erroneous decision. Legal scholars, even those who believe abortion should be legal, recognize that Roe was bad law.
Roe is bad law, as in legally flawed. The Court found that a “right to privacy” exists under the Constitution, despite the fact that the right to privacy is not in the Constitution. The Court decided that other judges had found “the roots” of that right in the First Amendment, in the “penumbras” of the Bill of Rights in the Ninth Amendment, and the “concept of liberty” in the Fourteenth Amendment. Having made that up, I mean, decided that, the Court also decided that it was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
The Court apparently didn’t see any reason to define what it meant by a right to privacy, because it didn’t do so, other than to give some examples from other cases. Without a definition of the right to privacy, it’s impossible to consistently apply that right. The ACLU recently demonstrated the ridiculousness of not defining the right, when it filed a brief on behalf of Sen. Larry Craig, arguing that you have a right to privacy (in this case, to have sex) in the stall of a public restroom in an airport.
Even assuming there is a constitutional right to privacy, and that you can figure out what it does and doesn’t cover, a right to privacy doesn’t give you the right to injure others. Since an abortion injures (destroys) the fetus, the Court must be deciding that the unborn fetus is not a person and therefore has no constitutional rights, right?
Wrong. The Court punted. It didn’t resolve the issue of when a fetus is a person with constitutional protections. It said it “is not in a position to speculate as to the answer” and that the justices “need not resolve the difficult question of when life begins.” This is brilliantly perverse reasoning. A state cannot limit the right to abortion, unless it has a compelling interest in doing so, but since there is uncertainty as to when life begins, the state’s interest in protecting the unborn cannot be compelling, and since the states cannot limit a constitutional right unless there’s a compelling interest — well, around and around goes this argument.
It’s also an argument any biology text book could answer. Go ahead, I dare you. In fact, I double dog dare you. Find a reputable biology text book that doesn’t define life as beginning at conception. A fetus is alive (or you wouldn’t need an abortion). It’s a member of the species, Homo Sapiens (no woman ever gave birth to anything other than another human being). It has a different DNA from either its mother or its father (it can’t be an appendage of the mother, or it would have the same DNA). To argue that the fetus isn’t a human being is specious, at best. Which is why more and more proponents of abortion are claiming that the fetus isn’t a person, or is only a potential person.
The Court erred in another, even more fundamental way. Laws are based on ethics. And I’m not talking about religious morals, I mean ethics. The most fundamental ethical principle is the Silver Rule, without which you cannot have a civilization. The Silver Rule is basically “do not do to others what you don’t want have done to you.” Or, more succinctly, “do no harm.” EVERY civilization, EVERY religion, even secular humanism, has this rule. (Go ahead, look that one up too.)
Rationally, this would have to be true — without the idea of “do no harm” you would have anarchy and chaos. Would you really want to live in a society that believes in harming others? If someone tells you that they see nothing wrong in harming others, would you want to be their friend or would you want the sociopath to get help?
The Supreme Court said it wasn’t “in a position to speculate as to the answer” of when life begins and it legalized abortion. The justices who ruled in favor of Roe abandoned thousands of years of ethics in a single document. Instead of using ethics to guide them — do no harm — they chose to use clarity — it wasn’t CLEAR to them when life began. But clarity depends on your knowledge, your capabilities, current technology. Suppose I go deer hunting, and I hear rustling in the bushes. I shoot before making sure what I’m shooting at is a deer. Oops, it turns out I shot a person. Do you think that I’d win this argument in court?
Me: “Sorry your Honor, it wasn’t clear to me that the rustling in the bushes was Joe Smith, so I shot first.”
Judge: “Guilty of manslaughter.”
Whether you think the unborn fetus is a human being, or not; whether you think the unborn fetus is a person, or not — apply the Silver Rule. Do no harm. You’ll sleep better at night.
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