The Roots of Roe v. Wade

During this month, as in every January for the past thirty years, those Americans left with even the meanest vestige of moral instinct will reflect with disgust on the Supreme Court’s ruling in Roe v. Wade. Some of these citizens will also comment, as they should, that that 1973 judicial determination was an affront to humanity, a legal travesty, a distortion of the Constitution surpassing in sheer injustice even the Dred Scott decision of 1857. Some, recalling that the Dred Scott ruling itself set the stage for the Civil War, may wonder—if it was true in yesteryear that "every drop of blood drawn with the lash shall be paid by another drawn with the sword"—whether some yet worse retribution will be exacted of our country by a righteous God righteously stirred at the murder of unborn children in their millions. And wonder they should. Still others, more stalwart of heart, will fortify their resolve to toil for the overthrow of Roe v. Wade, whether by constitutional amendment or by wise judicial appointments to restore the Court’s good sense and moral integrity. All such things will sane Americans think, of course, for these are still the right responses to the most extreme miscarriage of justice ever perpetrated by any court in this nation.

It is not to slight the propriety of any of those responses, therefore, that we declare Roe v. Wade to be more a symptom of our crisis than its cause. It appears to us, as it does to William B. Wichterman in a recent essay ("The Culture: ‘Upstream’ from Politics," in Don Eberly, ed., Building a Healthy Culture), that "the Court was simply joining the cultural revolution already well underway." Indeed, it is very arguable that Roe v. Wade did rather little to increase the number of legal abortions in this country. Wichtermann himself contends that "the abortion rate probably would have climbed to at least one million per year even without Roe, and more likely higher still."

By January of 1973, what now goes by the abhorrent euphemism "reproductive freedom" was already a movement robustly on the march, as Gerald N. Rosenberg demonstrated in the study he published eighteen years later, The Hollow Hope: Can Courts Bring About Social Change? When various state legislatures began removing statutory restrictions against abortion toward the end of the sixties, the frequency of the procedure jumped dramatically. Between 1968 and 1973, eighteen states had loosened their anti-abortion laws. In the large states of New York and California there was almost unlimited legal access to abortion chambers, and over a half-million legal abortions were performed in this country during the twelve months preceding the Supreme Court’s ruling. Indeed, before the first line of Roe was composed, 70 percent of all American citizens lived within two hours’ drive of a state where abortions were legal. The pro-choice lobby was definitely in the ascendant, and, according to a Gallup poll published just seven months before Roe, 64 percent of Americans believed that abortion was a matter to be decided entirely by a woman and her physician. Alas, some of us pro-lifers can still remember that it was ourselves, back in those days, not the pro-choice folks, who were counting on vindication by the Supreme Court.

We are not convinced, therefore, that a judicial reversal of Roe v. Wade, though it remains a favor much to be craved, would necessarily diminish the number of legal abortions performed in this country. More likely, such a development would simply shift the pertinent political agitation back to the state legislatures, where, we suspect, the pro-life cause would lose more battles than its proponents contemplate. Law and politics, we contend, lie downstream from culture, and the current cultural state of our nation, particularly with respect to abortion, seems to us not one whit better than it was during the years leading up to 1973. Between 1967 and 1972, a large number of major national groups and alliances passed various resolutions and endorsements to repeal all legal restrictions on abortion. Among those groups were 21 medical organizations and 28 religious bodies, including the YMCA. The political activities of those organizations were mainly directed, not at the Supreme Court, but at state legislatures, where they won more battles than they lost. There is every reason to believe that this would be the case once again if Roe were overturned.

Politics and law, we said, lie downstream from cul-ture. Therefore, the real and deeper dilemma, the dilemma arguably as disturbing as abortion itself, is cultural. Our current culture, to say it plainly, has largely stopped thinking of children as gifts from God and firstfruits of the future. The dominant mentality today is manifestly what Irving Babbitt (if memory serves) called "presentism." It is concentrated almost overwhelmingly on the present because men right now are living increasingly without hope, and they are living without hope because they are not providing for the future. Their cultural despondency is, in this sense, justified. Our culture, compulsively and even morbidly preoccupied with the here-and-now, is deliberately moribund, depriving itself of anything to look forward to. This truth is lucidly indicated by the disastrously low birthrates in this country (and in the West generally).

We submit, therefore, that children are now being aborted in the flesh, because they have already been, in large measure, aborted from the mind. We deprive unborn infants of a future because they are inconveniences intruding on our chosen pursuits in the present. Why should we let those infants live, after all, if they are but the by-products of sexual activity, rather than the properly intended purpose of that activity? In short, our current cultural crisis has to do with sex regarded in terms of present "fulfillment" rather than in terms of future family. The progressive severance of sex from the proper structures and duties of family is, moreover, a concern that most religious bodies in this nation have hardly begun to address at a deep level.

The most obvious manifestation of this severance, of course, is homosexuality. We are content here, however, merely to mention that the matter is obvious; we are not disposed to argue much with those who disagree. Indeed, some of us hardly know where to begin a serious moral conversation with individuals incapable of distinguishing between sexual organs and . . . well, other parts of the body.

Another manifestation of the current severance of sexuality from family, we believe, is recourse to artificial contraception. The pill, the patch, and the condom have become—once again to cite Wichtermann—our culture’s "first defense against childbirth," abortion serving only as a socially distasteful back-up. Pregnancy is now widely regarded as something that married couples are expected to prevent until they, not God, decide that they are ready to have children. Husbands and wives are expected to control, that is, not their sexual behavior, but their incidence of pregnancy. Man, not God, is thereby authorized to decide when and how the creation of human beings takes place. It is no small indication of our cultural decline that we now speak, not of procreation, but of reproduction.

This utterly rebellious attitude, the "contraceptive mentality," is surely a serious moral failing characteristic of the present culture. The relationship of this "contraceptive culture" to abortion itself lies much deeper than a first comparison of the two things might suggest, nor is there any logic, we think, in opposing the terrible sin of abortion while in other respects promoting the selfishness and materialism that give rise to it.

An illustration of the subterranean tunnel joining the ethics of abortion and contraception was provided in the events leading up to Roe v. Wade. It appears obvious to us that the public support for abortion that led to the Supreme Court’s decision in 1973 was not unrelated to the public rage and outcry that greeted the papal encyclical Humanae Vitae in 1968. When Pope Paul VI asserted that the primary and formal purpose of human sexual intercourse is the conception of children and, thus, the assembling of a family, he said no more about artificial contraception than the Bible and traditional Christian doctrine would oblige any Christian pastor to say—namely, that a serious moral flaw adheres to any sexual act that is deliberately closed off to God’s using that act for the creation of a human being. It is our persuasion that if Americans were to take seriously the traditional Christian perspective contained in Humanae Vitae, Roe v. Wade would disappear very quickly.

It is our hope, then, that this thirtieth anniversary of the Supreme Court’s ruling will be the occasion not only for lamenting the ongoing political climate that permits that odious dictum yet to stand, but also for pondering more deeply the grace and mystery of human sexuality itself, especially the manifest purpose for which God gave it to us. We all know there is a tribunal far higher than our Supreme Court. It is important to recall, in addition, that we too will gather before it, to render an account of our stewardship. The present growing separation of sexuality from the formation of family, we suggest, raises some serious questions about that stewardship

that 1973 judicial determination was an affront to humanity, a legal travesty, a distortion of the Constitution surpassing in sheer injustice even the Dred Scott decision of 1857

By renouncing the Bible, philosophers swing from their moorings upon all moral subjects. . . . It is the only correct map of the human heart that ever has been published. . . . All systems of religion, morals, and government not founded upon it [the Bible] must perish, and how consoling the thought, it will not only survive the wreck of these systems but the world itself. "The Gates of Hell shall not prevail against it." [Matthew 1:18]

(Source: Benjamin Rush, Letters of Benjamin Rush, L. H. Butterfield, editor (Princeton, NJ: Princeton University Press, 1951), p. 936, to John Adams, January 23, 1807.)

ROE v. WADE, 410 U.S. 113 (1973) REHNQUIST, dissenting.
To reach its result, 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. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth [410 U.S. 113, 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. 1 While many States have amended or updated [410 U.S. 113, 176] their laws, 21 of the laws on the books in 1868 remain in effect today. 2 Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [410 U.S. 113, 177] and "has remained substantially unchanged to the present time." Ante, at 119.

The Origin and Scope of Roe -- Professor Douglas W. Kmiec presents letters and records of correspondence between members of the Roe court that reveal questionable motivations as well as a fundamental disrespect for normal principles of judicial restraint.

every drop of blood drawn with the lash shall be paid by another drawn with the sword"—whether some yet worse retribution will be exacted of our country by a righteous God righteously stirred at the murder of unborn children in their millions.

Remember that national crimes require national punishments, and without declaring what punishment awaits this evil, you may venture to assure them that it cannot pass with impunity, unless God shall cease to be just or merciful.

(Source: Benjamin Rush, An Address to the Inhabitants of the British Settlements in America Upon Slave-Keeping (Boston: John Boyles, 1773), p. 30.)

overthrow of Roe v. Wade, whether by constitutional amendment or by wise judicial appointments

[W]e have no government armed with power capable of contending with human passions unbridled by morality and religion. . . . Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

(Source: John Adams, The Works of John Adams, Second President of the United States, Charles Francis Adams, editor (Boston: Little, Brown, and Co. 1854), Vol. IX, p. 229, October 11, 1798.)

Proposing an amendment to the Constitution of the United States with respect to the right to life. (Introduced in House)

HJ 20 IH

107th CONGRESS

1st Session

H. J. RES. 20

Proposing an amendment to the Constitution of the United States with respect to the right to life.

IN THE HOUSE OF REPRESENTATIVES

February 14, 2001

Mr. OBERSTAR (for himself, Mr. AKIN, Mr. ARMEY, Mr. BAKER, Mr. BARCIA, Mr. BARTLETT of Maryland, Mr. DEMINT, Mr. GREEN of Wisconsin, Ms. HART, Mr. HAYES, Mr. HULSHOF, Mr. LIPINSKI, Mr. LUCAS of Kentucky, Mr. PICKERING, Mr. SHIMKUS, Mr. SHOWS, Mr. TANCREDO, and Mr. TERRY) introduced the following joint resolution; which was referred to the Committee on the Judiciary

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States with respect to the right to life.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, to be valid only if ratified by the legislatures of three-fourths of the several States within seven years after the date of final passage of this joint resolution:

ARTICLE--

`SECTION 1. With respect to the right to life, the word `person' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States applies to all human beings irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development.

`SECTION 2. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.

`SECTION 3. The Congress and the several States shall have power to enforce this article by appropriate legislation.'.

Ñ Ñ Ñ

It is not to slight the propriety of any of those responses, therefore, that we declare Roe v. Wade to be more a symptom of our crisis than its cause.

Why Abortion Isn’t Important And we must come to the realization that when a society has reached a state in which abortion and other attacks on life are not only tolerated; not only legalized; not only accepted as normal; but are positively embraced by millions of people as the very solution to what ails that society—then we must realize that something has not only gone seriously wrong, but went wrong a long time ago, long before the Sixties, long before any of us was alive.

We need to understand that the anti-life movement is a secondary cancer, a metastasis of a primary tumour that began to grow when the West began to lose its religious sensibilities, its sense of communal obligation, its norms of respect and due deference for the elderly, the wise, the experienced, those who govern in our name, its standards of gentility and politeness, when people began twistedly to interpret manners as hypocrisy, noblesse oblige as exploitation, civic duty as state oppression, state patronage as a human right, love of neighbour as poking one’s nose into the business of others, hypocrisy as the greatest vice of all (to which I reply—better double standards than no standards), and proper autonomy as the right to do as one pleases.

The primary cancer is as deep as it is old, and it is almost certainly terminal.

Our culture, compulsively and even morbidly preoccupied with the here-and-now, is deliberately moribund, depriving itself of anything to look forward to. This truth is lucidly indicated by the disastrously low birthrates in this country (and in the West generally).

Western values under assault Western values are by no means secure. They're under ruthless attack by the academic elite on college campuses across America. These people want to replace personal liberty with government control; they want to replace equality with entitlement; they want to halt progress in the name of protecting the environment. As such, they pose a much greater threat to our way of life than any terrorist or rogue nation. Multiculturalism and diversity are a cancer on our society, and, ironically, with our tax dollars and charitable donations, we're feeding it.

The Multicultural Theocracy: An Interview With Paul Gottfried

What are the prospects for containing or rolling back the multicultural theocracy?

Note I do not think these battles will solve long-term problems; unless Western peoples start having families again, the social unit and population base needed for a civilization will be lacking.

While societies can assimilate, there are three presuppositions that must obtain: a core population that carries a distinctive culture that it hopes to preserve; a minority that is accepted on the condition that it eagerly embraces that majority culture; and a sufficiently controlled immigration so that assimilation is possible.

And where in the constitution would he get authority to do that?

Abraham Lincoln's Speech on the Dred Scott Decision -- Courtesy ...

…And now as to the Dred Scott decision. That decision declares two propositions-first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court-dividing differently on the different points.

…We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

....If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

Why this same Supreme court once decided a national bank to be constitutional; but Gen. Jackson, as President of the United States, disregarded the decision, and vetoed a bill for a re-charter, partly on constitutional ground, declaring that each public functionary must support the Constitution, "as he understands it."

Again and again have I heard Judge (Stephen) Douglas denounce that bank decision, and applaud Gen. Jackson for disregarding it. It would be interesting for him to look over his recent speech, and see how exactly his fierce philippics against us for resisting Supreme Court decisions, fall upon his own head. It will call to his mind a long and fierce political war in this country, upon an issue which, in his own language, and, of course, in his own changeless estimation, was "a distinct and naked issue between the friends and the enemies of the Constitution," and in which war he fought in the ranks of the enemies of the Constitution.

I have said, in substance, that the Dred Scott decision was, in part, based on assumed historical facts which were not really true; and I ought not to leave the subject without giving some reasons for saying this; I therefore give an instance or two, which I think fully sustain me. Chief Justice Taney, in delivering the opinion of the majority of the Court, insists at great length that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States.

"On the contrary, Judge Curtis, in his dissenting opinion, shows that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had. He shows this with so much particularity as to leave no doubt of its truth; and, as a sort of conclusion on that point, holds the following language:

"Again, Chief Justice Taney says: "It is difficult, at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted." And again, after quoting from the Declaration, he says: "The general words above quoted would seem to include the whole human family, and if they were used in a similar instrument at this day, would be so understood."

…"He finds the Republicans insisting that the Declaration of Independence includes ALL men, black as well as white; and forthwith he boldly denies that it includes negroes at all, and proceeds to argue gravely that all who contend it does, do so only because they want to vote, and eat, and sleep, and marry with negroes! He will have it that they cannot be consistent else. Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone.

"...Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another."

Are unborn children human beings? Are they persons? No doubt about it. The following essays argue the pro-life case...

When Do Human Beings Begin? -- by Dianne N. Irving, Ph.D. In this essay, former NIH bench research biochemist Dianne Irving demonstrates the scientific fact that the lives of human beings--and human persons--begin at conception.
Personhood Begins At Conception -- by Peter Kreeft, Ph.D. Professor Kreeft explains what exactly a "person" is and why the various philosophical positions which deny that the unborn child is a person are themselves inadequate.
Is the Unborn Less Than Human? -- by Francis J. Beckwith, Ph.D. In this essay, Dr. Beckwith lays out the scientific facts surrounding human development and explains why it does not make sense to argue that a human being is created at implantation, quickening, or birth.
When Does a Human Become a Person? -- by Francis J. Beckwith, Ph.D. Continuing the previous essay, Dr. Beckwith demonstrates why other functional criteria given for personhood--such as sentience, brain development, and viability--are inadequate. He then refutes the "gradualist" position, which incorrectly asserts that the unborn becomes more and more human as the pregnancy progresses. Finally, he discusses the positions of various abortion and infanticide advocates like James Rachels, Mary Wollenkott, and Michael Tooley.
Does Life Begin At Implantation? -- by Francis J. Beckwith, Ph.D. In this essay, Dr. Beckwith addresses the phenomena of monozygotic twinning, hydatiform moles, choriocarcinoma, blighted ova, cloning, and fertilization wastage. He then shows how these phenomena fail to disprove the position that human life begins at conception.
Scientific and Philosophical Expertise: An Evaluation of the Arguments on Personhood -- by Dianne N. Irving, Ph.D. In this essay, biochemist Dianne Irving argues that positions which assert that early human embryos are not persons are based on inadequate philosophical principles and faulty scientific data.
The Human Rational Soul in the Early Embryo -- by Stephen Heaney, Ph.D. In this essay, Professor Heaney discusses the various theories of "ensoulment" that permeate philosophical (and theological) discussions on abortion.
A Survey of Arguments for Immediate versus Delayed Animation -- by Scott Sullivan. In this essay, Thomist Philosopher Scott Sullivan critically analyzes the theory of mediate animation.
The Tiniest Humans -- an interview with the renowned geneticist Jerome Lejeune and the father of modern embryology, Sir Albert William Liley

Some abortion advocates are willing to concede that unborn children are human beings. Surprisingly enough, they claim that they would still be able to justify abortion. According to their argument, no person-no unborn child-has a right to access the bodily resources of an unwilling host. Unborn children may have a right to life, but that right to life ends where it encroaches upon a mother's right to bodily autonomy. The argument is called the bodyright argument, and it is refuted in the following essays...

The Bodyright Argument: A Pro-life Response -- By Brian D. Parks. In this essay, your webmaster gives a comprehensive analysis of the bodyright argument, including a discussion of the various pro-abortion analogies to pregnancy, and a refutation of the positions of Philosophers Judith Thomson, Susan Mattingly, Patricia Jung, Frances Kamm, Margaret Little and others.
The Changing Pro-Life Argument: Does the Humanity of the Unborn Matter Anymore? -- by Francis J. Beckwith, Ph.D. In this essay, Professor Beckwith introduces and refutes the famous argument from "bodily rights".
A Woman's Right Over Her Body? -- by Stephen Schwarz, Ph.D. In an excerpt from his book The Moral Question of Abortion, Dr. Schwarz addresses arguments in defense of abortion that are based on a woman's "right" to control her own body.
Unplugging a Bad Analogy -- by Doris Gordon. In this essay, Doris Gordon, the National Director of Libertarians For Life, refutes a famous argument put forth by philosopher Judith Jarvis Thomson.
Abortionists, Violinists and Burglars -- by Christopher Kaczor, Ph.D. In this essay, Professor Kaczor addresses Thomson's arguments from a different angle.
A Fetus is NOT a Parasite -- by Thomas L. Johnson, Ph.D. In this piece, chordate embryologist Dr. Thomas L. Johnson attacks the popular misconception that a human fetus is the equivalent of a biological parasite.
Begging the Question -- by Edwin Viera. In this brief essay, Dr. Viera explains why the statement "a woman has a right to control her own body" begs the basic question in the abortion debate--is she only affecting her own body when she aborts?

Why would it be wrong to kill an adult? Why would it be wrong to kill a baby after it has been born? Questions like these seems trivial, but their answers are extremely important to the abortion debate. What many people fail to realize is that most of the arguments used to justify killing unborn children could be used with just as much force to justify killing newborn children and, in some cases, even full-grown adults. The wrongness of killing is discussed in the following essays...

I Was Once a Fetus -- By Alexander Pruss. In this essay, mathematician and philosopher Dr. Alexander Pruss offers an identity based argument against abortion.
The Real Problem with Abortion -- by Mark McNeil. In this essay, Mark McNeil examines two competing positions on the issue--the position of moderate pro-life advocate Don Marquis and the position of liberal abortion advocate Mary Anne Warren. McNeil concludes that neither position sufficiently explains why it is wrong to kill human beings, and introduces his own viewpoint.

Homicide Based on the Killing of an Unborn Child -- In this essay, Alan Wasserstrom surveys the history of laws which prosecute feticide--the destruction of a human fetus--as homicide.

State Homicide Laws That Recognize Unborn Victims

The Unborn Victims of Violence Act (H.R. 503) recognizes unborn children as victims of federally prohibited crimes of violence. If someone injures or kills an unborn child while committing a violent federal crime against a pregnant woman, the assailant will be charged with a separate offense on behalf of the unborn child. The bill simply puts federal law behind the common sense recognition that when a criminal attacks a pregnant woman, and injures or kills her unborn child, he has claimed two human victims. The House passed H.R. 503 / vote: 252-172 April 26, 2001

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