Then you agree with Blackmun’s majority opinion in Roe v Wade. As does Scalia…the supposed prolife hero. And this is the most crucial part of the decision…the part that opened the door to the slaughter…hardly fair to unborn persons.
No, that is not the crucial part of the decision,
not even close. No serious constitutional scholar or judge thinks that the 14th Amendment was meant to protect the unborn. The argument raised by the state of Texas in
Roe v. Wade was part of a strategy that is often used in court, namely to raise every possible defense to a legal action. The argument that an unborn child is a “person” within the meaning of the 14th Amendment was a weak argument that was nonetheless raised in the hopes of appealing to one or two of the Justices.
The most crucial part of the opinion, and the part that has serious constitutional difficulties, is where the Court finds a right to privacy in the 14th Amendment, so that no State can pass laws that completely prohibit abortions. This “Substantive Due Process” is the most crucial part because many of the more laughably incoherent decisions by the Court in the past half century have been based on this theory, and it is the theory upon which the Court bases its holding in
Roe. Blackmun was very wrong when he used this theory to justify his holding, but he was absolutely correct when he said that the unborn were not persons within the meaning of the 14th Amendment.
The best argument against Blackmun’s reasoning is that Substantive Due Process, that is, the “finding” of rights such as the right to an abortion in the Constitution, when it is not actually written there, betrays the original meaning of the Constitution and is thus creative projection of one’s own personal views onto the text of the Constitution.
The best defense of the 14th Amendment against what you are saying is the text itself…no exceptions are listed to “any person”.
I understand that argument, but it is flawed. At the time that the 14th Amendment was adopted, it was not believed that the fetus was necessarily a person. There was actually a substantial tradition in the common law that made a distinction between a fetus that was not yet “alive” and one that was and thus was able to gain more rights:
“It is undisputed that, at common law, abortion performed before “quickening” – the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy –
was not an indictable offense. The absence of a common law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became “formed” or recognizably human, or in terms of when a “person” came into being, that is, infused with a “soul” or “animated.” A loose consensus evolved in early English law that these events occurred at some point between conception and live birth.”
Unprovable assertion. The unborn were long protected by most states until those laws were challenged by Roe. The lack of Constitutional challenge to state abortion laws (until Roe) is stronger evidence of the opposite. And as I’ve said, Texas, in Roe, claimed their statute was required by the 14th Amendment.
Actually it was not until 1821 that Connecticut passed the first law that made abortion of a “live” child a crime. It was not until 1860 that Connecticut made abortion of a child that was “not alive” (that is, before the 16th week) a crime. Before 1821, States relied on the common law under which abortion before the 16th-18th week was not even a crime. It really was not until after the Civil War that legislation began to replace the common law in most states, so that by the 1950s you have laws in most states that banned abortions.
Did anyone raise chickens and eggs back then? Jefferson said in the Declaration that all men are created equal. He didn’t say born equal. But it was clear scientifically when Roe was decided. And they pretended it wasn’t.
It does not matter whether or not it was clear scientifically at the time of
Roe v. Wade when personhood actually begings. What does matter is what was believed when the 14th Amendment was adopted. When the people invested with the political authority to change the Constitution wrote the 14th Amendment, they did not mean “persons” to include the unborn. I wish it were different. However, such is not the case, and a correct reading of the Constitution will recognize that fact.
