Roe V. Wade: Analysis of the court’s opinion, part I

Published 18 years ago -  - 18y ago 46

…[T]he woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. [emphasis added]
Roe v. Wade, 410 U.S. 113, 153.

Justice Blackmun, writing for the Court, did a curiously exhaustive amount of research dating back to the Persian, Greek and Roman empires to investigate the practice of abortion and the prevailing social and legal attitudes toward it.  The opinion is a very convoluted and at times confusing treatise on law and social customs throughout the ages, presumably thought necessary by the Supreme Court to justify a position that would clearly open the door through which pro-choice forces would drive a freight train.

Yet this case is the hingepin on which today’s open abortion practices turn, and the barrier to the efforts of numerous states to assert their 10th amendment rights in determining what is the will of the people and thus ending the practice of abortion in their particular state.

One can be pro-life and never read Roe v. Wade.  Most people who are either pro-choice or pro-life doubtless have never read that case word for word.

This article begins with what I found to be an astonishing remark, because the statement “with this we do not agree” is the very antithesis of the laws and decisions that followed the opinion rendered in Roe v. Wade!  That comment is excerpted from Section VIII of the Opinion.

If indeed that Court did not agree that abortion could be on demand, for any reason, succeeding Courts have most surely agreed that abortion may be on demand.

Why did I undertake to read the case, excerpt portions of it, and then write about it?   One reason was curiosity.  I was tired of hearing “Roe v. Wade” and not knowing what it in fact said.  Another is that having spent 25 years in the legal field as my second career, I am used to reading case law, so it was not as formidable a task to me as it might seem.  But there was another reason:

I wanted to understand on what grounds the United States Supreme Court could justify its decision to permit what I understand to be premeditated murder!

What I found utterly astonished me, because the entire decision depends on the construction of the language of the 14th Amendment to the United States Constitution in such a way and such a manner as to defy all reason as I understand the term “reason.”

This is what the Court said about the decision and its relationship to the 14th Amendment:

A. The appellee and certain amici argue that the fetus is a “person” within the language and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, [410 U.S. 113, 157] [emphasis added]  for the fetus’ right to life would then be guaranteed specifically by the Amendment. [emphasis added] The appellant conceded as much on reargument.  On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

Because no case law stated that a fetus is a person, this Court, rather than establishing that a fetus is a “person” found a way to establish that a fetus is not a “person” within the meaning of the 14th Amendment!

That convoluted construction of the 14th Amendment was the key that unlocked the door.

Obviously feeling the need to bolster their “construction” of the 14th Amendment, the Court went on to state:

The Constitution does not define “person” in so many words. Id. at 157.

Briefly, then, had the Constitution defined what a “person” is, and should that definition have included the unborn baby in a mother’s womb, presumably the Court would have had to conclude that abortion is murder!

Since Roe v. Wade then hinges on what is or is not a “person”, the Opinion rendered, hinging as it does on the Constitution’s absence of such definition,   opened the door wider than we may realize.

It is now up to the highest Court in the land to determine who is, and who is not, a “person” within its construction of what is or is not defined specifically by the Constitution.

That is very dangerous ground.  As we have seen, the Roe court stated that it disagreed with wholesale abortion on demand, yet that is what followed.

Roe v. Wade and the 14th Amendment implications will be discussed in Part Two.

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