Rethinking Roe V. Wade Roe V. Wade, Research Paper

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Rethinking Roe v. Wade

Roe v. Wade, the landmark decision made in 1973, legalized first-trimester abortion, and was a historic decision that changed the course of our country morally and spiritually. Many people still question whether the United States Supreme Court was right to make abortion legal, both legally and morally. This essay will show that the historical evidence does not support the conclusion that was drawn in the decision, and the legal reasoning, which relied heavily on a right to "privacy," the right's of the mother, and the idea that a fetus is not a person, was not correct as well. Finally, abortion goes against natural law, and God's law must be higher than man's law. Given that any abortion is the killing of an innocent, unborn child, it is a horrible evil in our society and should not be protected by law in any form.

In the Roe v. Wade decision, Blackmun's historical analysis of abortion is highly flawed. He claims that at most times in our history as a nation, abortion more tolerable than it was at the time of writing[footnoteRef:1], but in 1869 the American Medical Association condemned abortion, and by 1875 all states had laws banning some form of abortion.[footnoteRef:2] Rehnquist also writes in his dissent that the fact that the majority of states still have restrictions on abortions makes it clear that abortion was not an acceptable practice in American history.[footnoteRef:3] He writes, "Even today, when society's views are changing, the very existence of the debate is evidence that the 'right' to an abortion is not so universally accepted as the appellant would have us believe." Certainly, not everyone agrees that's abortion has been tolerated throughout American history. [1: Roe v. Wade, 410 U.S. 113, (1973), p. 8] [2: American Life League (October 5, 2005), "A History of Abortion in the United States," http://www.all.org/article.php?id=10121 (accessed 30 November 2010)] [3: Roe v. Wade, p. 8]

In the decision, Blackmun describes how abortion was acceptable in some circumstances under English common law, common law being the eventual basis for laws of the United States.[footnoteRef:4] He does, however, fail to mention a common tenant of English common law. As Clifford Stevens quotes from English common law"Qui in utero, est pro-jam nato habetur quoties de ejus commodo quaeritur: One who is in the womb is held as already born, whenever a question arises for its benefit." Therefore, according to English Common Law, the unborn have the same rights as the born, and these rights have been embodied in our Constitution in the 9th Amendment. Therefore, using that logic, all the rights in the Bill of Rights should apply to the unborn, as well as the born.[footnoteRef:5] The decision issued in Roe only selectively used knowledge of English Common Law in its reasoning, and this idea needs to be challenged. [4: Roe v. Wade, 410 U.S. 113, (1973), p. 8-9.] [5: Clifford Stevens. "The Rights of the Unborn: From Common Law to Constitutional Law." http://www.priestsforlife.org/government/stevens3.htm (Accessed November 30, 2010)]

The "right to privacy" on which this decision was based is also quite problematic. In the decision, Blackmun even writes "The Constitution does not explicitly mention any right to privacy," but he lists many cases that support this, particularly mentioning cases that deal with marriage and procreation, such as Loving v. Virginia, Skinner v. Oklaholma, and Eisenstadt v. Baird.[footnoteRef:6] As Rehnquist wrote in his dissent, a procedure such as an abortion is not "even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment." Rehnquist claims that by "privacy" the court means "the claim of a person to be free from unwanted state regulation of consensual transactions," which more a form of "liberty" protected by the 14th Amendment. However, in Rehnquist's opinion, the justices do not provide any proof that the law violates the Due Process Clause of the 14th Amendment, and therefore the Court has overstepped its boundaries.[footnoteRef:7] If the court becomes too powerful, it overshadows the will of the people, and we no longer can call our country a democracy, in declaring a "right to privacy" where there once was none, this case is doing just that. [6: Roe v. Wade, p. 12] [7: Roe v. Wade, p. 19]

Blackmun makes very clear in the decision that he does not consider a fetus to be a person with any legal rights. Even though he tries to dodge the issue by writing, "We need not resolve the difficult question of when life begins,"[footnoteRef:8] but in making that statement he misses the point entirely.

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If one believes that life begins at conception, then this is a most certainly a central issue. It is ironic that Blackmun relies so heavily on a "right to privacy," because, as discussed above, this principle comes from English Common law, a common law that also held life to begin at conception.[footnoteRef:9] Morally, one has to challenge's the idea that in no way under U.S. law could a fetus be considered a person. Every day, more medical evidence is available about exactly how developed a child is in the womb, yet because the Roe decision refused to take the idea that life begins at conception seriously, this practice has become legal.[footnoteRef:10] [8: Roe v. Wade, p. 14] [9: Clifford Stevens. "The Rights of the Unborn: From Common Law to Constitutional Law." http://www.priestsforlife.org/government/stevens3.htm (Accessed November 30, 2010).] [10: Herbert W. Titus, (1997) "Ending Legal Abortion," http://www.conservativeusa.org/titus100.htm (Accessed November 30, 2010).]

Even Blackmun writes that "The pregnant woman cannot be isolated in her privacy,"[footnoteRef:11] but the court still places too much emphasis on the autonomy of the woman involved. A woman carrying a child cannot be considered without thinking of the child that is also inside her. Women who are carrying children often get specialized medical care, eat particular foods, and avoid alcohol and tobacco, all to protect and nourish their unborn baby. Decisions prior to Roe did in fact intervene in a woman's pregnancy to help save her unborn child. For example, in Raleigh-Fitkin-Paul Morgan Memorial Hospital v. Anderson (42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 [1964]), the New Jersey court force a woman to undergo a blood transfusion, despite her religious objections, in order to save the life of the baby she was carrying.[footnoteRef:12] Decisions such as this one show that, as discussed above, human life is deeply valued, even when the person has not been born, and that there is a legal precedent for protecting that unborn person. If cases such as this show such a strong interest in the life of the fetus, how can Roe be said to be a reasonable decision? [11: Roe v. Wade p. 14] [12: Charles Rice (2005), "The Human Life Amendment" http://www.all.org/article.php?id=10065 (Accessed November 30, 2010).]

Going back to Rehnquist's dissent, the fact that the court is overreaching is especially serious, because it means that the decision is in violation of the U.S. constitution. "To reach it's result, the Court necessarily had to find within the scope of the 14th Amendment a right that is completely unknown to the drafters of the Amendment."[footnoteRef:13] As Herbert W. Titus astutely notes, "Article VI of the United States Constitution states that three things are the Supreme Law of the Land: "This Constitution ... The laws of the United States ... made in pursuance thereof; and all treaties ... made under the authority of the United States." Conspicuously absent from this list is a court opinion."[footnoteRef:14] If the court is striking down valid state laws without proper reason, it is becoming more powerful than the Constitution intended it to be, and this is a threat to our democracy. As Rehnquist notes in his dissent, most states had the time had laws restricting abortion -- this is what the people wanted and felt was right. Our country is no longer a democracy if the court can, in Rehnquist's words create a "right that is completely unknown." [13: Roe v. Wade, p. 20] [14: "Ending Legal Abortion," http://www.conservativeusa.org/titus100.htm (Accessed November 30, 2010)]

Finally, the legalizing abortion violates natural law, and thus should not have occurred in this country. As citizens of the United States and participants in a democratic government, we make and follow laws that we hopefully find to be reasonable and fair, and this is one of the great advantages of a democracy. The sense of reason, however, is given to us by God, and denying his existence is not "reasonable" at all. "If condemnation of something by both God's positive divine law -- the Ten Commandments -- and the unwritten but discernible natural law can be overthrown by a vote of five Supreme Court justices, can it be said democracy or republicanism truly exists?" writes Frank Morriss.[footnoteRef:15] Establishing our own law's in violation of God's natural law certainly should not happen in a country that calls itself a democracy. [15: Frank Morriss. "Court Rulings Cannot Negate the Law of God." http://www.catholicculture.org/culture/library/view.cfm?id=3122 (accessed November 30, 2010). ]

Abortion is a societal evil and….....

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