39 Years after Roe v Wade: Revisiting the Supreme Court Decision
By TheBlackTortoise on January 24, 2012
Every year, on the anniversary of Roe v Wade, I set out to share my opinion. Every year I chicken out. I know my opinion is sure to anger both my pro-life and my pro-choice friends, many of whom see things through a black-and-white, all-or-nothing lens. As in so many things in life’s journey, this issue a complex one.
I am pro-life; probably more pro-life than most. Life is good. Life is precious. I wish all people to have a full and meaningful life. I’m in favor abolishing death sentences; I wish for an end to war. I’m against suicides, assisted or otherwise. I pray no woman seeks abortion as an answer to pregnancy. I’m not naive; I know that not all pregnancies are planned and not all babies are born perfect. Still, I believe personal struggle is the root of human strength; as Budha expresses in his “Four Nobel Truths,” life means suffering.
My first-born son was three-month-old when the US Supreme Court made the Roe v Wade decision January 22, 1973; he’s thirty-eight years old now. So much has changed in that time. Back then, I heard my baby’s heartbeat through a stethoscope near the end of the first trimester; felt a flutter of life sometime during the second trimester; and I was told I had a son on the day he was born. Back then, a preemie had little chance of surviving because the lungs lacked surfactants allowing them to expand and the baby to breathe. Back then, in utero diagnosis was next to impossible: ultra-sound was in its infancy and amniocentesis was dangerous. Back then, pregnancy outside of marriage was a shameful secret. Back then, abortion was illegal in most state, including the one I lived in.
Today, I know a grandchild is on the way before I would have even suspected my own pregnancy. Today, I hear and see my unborn grandson in stereo and three-dimensional color earlier than I heard the first heartbeat of my unborn child. Today, with medical treatment, a preemie of less than two pounds can flourish. Today, blood tests from the pregnant woman, and in utero testing can diagnose or predict birth defects. In utero treatment is not only possible, but common. Today, a healthy family can come in a variety of configurations, in addition to the traditional married man and woman. Today, abortion is legal in all 50 states.
This year, on the eve of the anniversary of Roe v Wade, I dug up the Supreme Court Opinion delivered by Justice Blackmun. It is time I understand the prevailing wisdom of that time, deliberated and based on Constitutional soundness. What I found surprised me; perhaps you will feel the same.
The Court thoroughly reviewed abortion laws as far back as ancient Greece, as well as the Hippocratic Oath, which stands, from that ancient time until now, as a standard for medical professionals. The Opinion makes a point that the Supreme Court is not equipped to decide when an individual life begins or when a soul is infused into the individual, that conception is a process, not a moment in time, and that the notion of the individual changes with advancements in science and technology. Religious leaders’ opinion, including that of my Catholic Church’s that an individual’s life begins at conception is a relatively modern concept.
The Hippocratic Oath forbids abortion: “I will not give to a woman a pessary to produce abortion,” and “I will not give to a woman an abortive remedy.” One of my favorite psalms, celebrating the uniqueness of the individual speaks of a process of becoming:
“You made all the delicate, inner parts of my body, and knit them together in my mother’s womb. Thank you for making me so wonderfully complex. It is amazing to think about…You were there while I was being formed in utter seclusion. You saw me before I was born…” (Psalm 139, translation from The Living Bible.)
Common law forbade abortion prior to “quickening”, that first flutter of life a pregnant woman feels somewhere between 13 and 16 weeks of pregnancy. Early Christian theology believed becoming recognizably human occurred over the course of pregnancy and that the soul was infused into the male at 40 days and the female at 80 days. Until the mid-nineteeth century, most states permitted abortion prior to quickening if the mother’s health was in grave danger, or if there were a substantial risk that the child would be severely handicapped.
The underlying root of the Court’s decision is based on whom the Constitution protects: a born person. The Opinion’s pivot point is the wording of the Constitution with its Amendments. The rights of citizens are intended for a born person. 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.”
Although person is not explicitly defined anywhere in the Constitution, in all the places “person” is used, it is used postnatally. Persons unborn are not protected by the Constitution. That said, the Opinion reminds us that no other person’s rights should be infringed either. In other words, no one is required to participate in abortion against his or her conscience. Although the Opinion addresses this subject in terms of the Hippocratic oath and medical professionals, it can and is applied to citizens’ right to prevent funding abortion with tax-payers’ money.
The Opinion disagrees that a woman has the right to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. Viability outside the womb, even with the assistance of medical intervention is a determining factor in the decision to rule on when a State can step in to “in safeguarding health, in maintaining medical standards, and in protecting potential life.”
Then, as now, abortion before “quickening”, was as safe, if not safer than carrying a pregnancy to term. The Court decided in favor of the woman’s right to privacy, in much the same way as a couple has a right to privacy in the bedroom and decision in contraception, family relationships, child rearing and education. As in child-rearing, that right is never considered absolute and unqualified.
In much the same way that freed slaves were considered citizens (14th amendment) and women gained protection under the Constitution (18th Amendment), an Amendment is needed to change when an unborn person is protected.
All the stones of rhetoric politicians throw at their opponents and used to enflame Pro-Life voters is nothing more than lip-service at its best, and bamboozlement at its worst. People are encouraged to vote on this one issue, an issue that has little or no chance of being changed without a Constitutional Amendment, while at the same time these very same elected officials often undermine our unalienable rights to, “Life, Liberty and the pursuit of Happiness” by enacting laws and cutting funds to our most vulnerable and needy citizens. Surely, those who fought for a woman’s right to privacy, those who called for such a difficult medical decision to be between a woman and her physician; even the most ardent pro-choice among us are disappointed that in 2009, 41% of New York City pregnancies ended in abortion and among African American women that number was 60%. (New York Post.) Surely no one hopes that an invasive surgical procedure, no matter how safe, is the method of choice for family planning.
Rather than fight this battle by electing less than sincere public officials, I suggest another tactic to protect life at all stages of development. Let us put away our divisiveness and help each other in our life struggles. Let us elect officials that support life-affirming programs. Let us discourage a volunteer military where the poorest among us are encouraged to put their lives on the line in hopes of an exit from poverty. Let us reform our penal system to abolish the death sentence. Let us provide education, health care, and employment opportunities that lead women to prevent unwanted pregnancies, and let us support laws that help mothers and children in need. Let us foster a society that embraces adoption, both as an infertility option and as a positive choice for birth mothers. Let us work within the wording of the Supreme Court’s Opinion and protect unborn life when it is in the State’s interest by working at the Sate level. Let us make abortion the road less-traveled, the choice of last resort.
Life is rarely simple, nor are the choices we make along our journey. Let’s celebrate the uniqueness and beauty of the life in each of us. Let’s work together to create a life affirming world. In the words of Thomas Merton:
Fill us then with love, and let us be bound together with love as we go our diverse ways, united in this one spirit which makes you present in the world, and which makes you witness to the ultimate reality that is love. Love has overcome. Love is victorious.
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