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

There s another way to void the Roe and Doe cases. By bringing a separate case addressing the issue of protection for an individual human life on life support, a decision could be rendered that would set new precedent. With fetal tissue harvesting and that harvesting occurring without proof of death of the fetus --as is the current practice in 'clinics' such as the body parts market operated by Tiller the serial killer, the potential is ripe for a paradigm shift. When body parts are harvested from adult individual humans, a certificate of death must be rendered. With the fetal tissue market no such certification is issued, establishing on the face of it the disenfranchisement of an entire class of alive indivdual human beings.

The exploitation of individual human life in the embryonic stage and pre-born stage is an ominous wrong on the verge of consuming our remaining righteousness as a nation that began on principles espoused in our founding documents beyond any in the history of civilization, life, liberty, and the pursuit of happiness as sovereigns of a representative form of government.

Federalism: Reconciling National Values with States' Rights and Local Control in the 21st Century A constitutional principle without an actual constituency to back it up will soon crumble.

If we do not make this transition, in my honest and fearful opinion, this nation will not stand much longer.

Death as Deliverance: Euthanatic Thinking in Germany ca. 1890-1933 Writing in 1989, the late Cardinal John O'Connor of New York City, an ardent pro-life advocate, predicted that euthanasia would "dwarf the abortion phenomenon in magnitude, in numbers, in horror."

Not being a professional student of the supreme court, I will plead ignorance on your statement of "the supreme court can't reverse a past decision". If the facts come to light, that a decision was based on improper arguments, or outright falsehood, it stands to reason, that a decision must be able to be reversed else what does the court stand for? Rhetorical question, not designed to bring out humorous comments vis-a-vis the court.

The Supreme Court, precisely because it is a court, cannot act on its own initiative. What I meant was that the Court could not, tomorrow, simply announce that it wants to reverse a past decision. Neither would it ever announce how it is going to decide some future case--because how would you like to go before a judge who had already announced that he knew how he wanted your case to come out? What the Court CAN do is accept some future abortion case, and decide that case on the basis of the principle that there is no right to kill babies in the womb.

and decide that case on the basis of the principle that there is no right to kill babies in the womb.

Thus in effect nullifying and or reversing the original decision, but only for that one case, and that is my problem or one of them with the way the court has positioned itself over the years, not as a judge of the law but in many cases, a maker of law, by virtue of it's interpretation.

I think what I would like to see the court do, if they can't see their way clear to nullify, than to at least apologize for keeping in effect a law they made, by unconstitutional means, which was made clearly based on false testimony as we have the retraction of that testimony in hand, and the court has never sought to hear the case after the retraction.

And as you have not quite said, "not in a million, zillion, years will we ever hear such an apology, but if we do we will know the court is on the right track.

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