By Paul Stark
In its 1973 Roe v. Wade decision, the U.S. Supreme Court ruled that the Constitution requires states to permit abortion for any reason. The American people, the Court decided, are not allowed to legally protect human beings in utero from acts of violence that kill them (as long as the mother gives her permission).
Of course, the Constitution doesn’t say anything about abortion policy. So the Court attempted to extrapolate a constitutional right to abortion from the Due Process Clause of the Fourteenth Amendment, which was adopted in 1868 to protect the rights of former slaves. The Clause says that no state shall “deprive any person of life, liberty, or property, without due process of law.”
The Court’s claim that those words require abortion-on-demand is not very plausible.
“As a constitutional argument,” notes University of Pennsylvania law professor Kermit Roosevelt (who personally supports legalized abortion), “Roe is barely coherent. The Court pulled its fundamental right to choose more or less from the constitutional ether.”
One fact of history, however, makes the Court’s decision especially egregious: The American people adopted the Fourteenth Amendment during an era in which those same American people enacted a wave of state laws to protect unborn children from abortion.
Justice Harry Blackmun, who wrote the majority opinion in Roe, seemed to realize that this fact posed an obstacle to the conclusion the Court wanted to reach. So Blackmun, citing two since-debunked articles written by Cyril Means (a lawyer for the National Association for the Repeal of Abortion Laws), put forward Means’s novel theory that the 19th century abortion laws weren’t really about protecting the unborn. They were, instead, only about protecting women from a dangerous procedure—a concern that is no longer relevant, Blackmun reasoned, given the relative safety of modern abortion techniques.
Even if Blackmun and Means were right about the purpose of the abortion laws, though, it wouldn’t follow that measures to protect the unborn are impermissible or that they do not advance a compelling state interest. But Blackmun and Means demonstrably were not right.
Definitive and overwhelming historical evidence shows that 19th century state legislatures were motivated (in large part) to prevent killing that they regarded as unjust. They had learned from scientific advancements that abortion at any stage, even before quickening, took the life of a developing member of the species Homo sapiens, and newer abortion methods were turning the practice into a larger problem in American society.
So the American Medical Association (AMA) and others campaigned to replace insufficient common-law protections (or earlier statutory protections) with laws that protected all unborn children from abortion.
“Physicians have now arrived at the unanimous opinion that the foetus in utero is alive from the very moment of conception,” wrote Dr. Horatio Storer, who spearheaded the AMA’s effort, in 1866. “[T]he willful killing of a human being at any stage of its existence is murder.”
States responded by enacting laws prohibiting all elective abortions. Consider, in particular, legislation to strengthen Ohio’s abortion ban that was enacted in April 1867. That’s just a few months after the same lawmakers, during the same legislative session, voted to ratify the Fourteenth Amendment. A report prepared by the Ohio Senate Committee on Criminal Abortion called abortion “child-murder” and grounded its position in the scientific fact that unborn children are human beings and the moral principle that intentionally killing people is wrong.
Why does all this matter? Because the Americans who decided to ban abortions are the same Americans who, during the same time period, decided to adopt the Fourteenth Amendment. Then, a century later, the Court ruled that the Fourteenth Amendment somehow precludes doing what the ratifiers of the Fourteenth Amendment actually did.
Justice William Rehnquist made this point in his dissenting opinion in Roe. “To reach its result,” he wrote, “the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”
Rehnquist continued: “There apparently was no question concerning the validity of [laws against abortion] when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.” [Emphasis added]
Indeed, in order to hold that the Fourteenth Amendment prevents Americans from protecting unborn children, as the Court ruled in Roe, one has to hold that (magically?) the Fourteenth Amendment means something other than what the American people actually agreed to when they ratified the Amendment.
That is ridiculous. The Court’s claim that there is a constitutional right to abortion isn’t just wrong. It is obviously wrong. It is nonsense.
Regardless of one’s position on the ethics of abortion—and regardless of one’s position on whether abortion should be legal—Roe v. Wade is not a decision that can be defended seriously.
Editor’s note. Mr. Stark is Communications Director for Minnesota Citizens Concerned for Life, NRLC’s state affiliate.