Destined to Be Overturned
Although Roe v. Wade and its companion case Doe v. Bolton survived almost 50 years, they were bound to be reversed someday after careful and honest scrutiny. Both cases began with falsehoods about the situations of Roe (Norma McCorvey) and Doe (Sandra Cano) asserted by the lawyers who presented their cases. McCorvey was an unmarried woman seeking an abortion, and thought her chances would be better if she said she had been raped, although her boyfriend was the father. Being too far along for an abortion, McCorvey gave birth to a daughter. While initially “pro-choice,” she became a prolifer in 1995. Sandra Cano maintained she was not even seeking an abortion, but was involved in a divorce, and wanted custody of two of her children. Yet she was described in the court summary of Doe v. Bolton as “an indigent, married, pregnant woman, who desired but was refused an abortion” (p. 201). Cano denied she ever sought an abortion, maintaining that she simply signed papers presented by her lawyers. In 2003, she began unsuccessful legal proceedings to overturn the case that bears her name. Furthermore, subsequent close scrutiny of the cases by a range of activists and scholars clearly shows that they were intentionally crafted to permit abortion-on-demand and bolstered by false data to achieve that purpose. We shall review some of the evidence for this assertion.
The words of the decisions themselves. Justice Harry Blackmun delivered the opinion of the Court on January 22, 1973, with six other justices concurring with his decision. Justices Rehnquist and White dissented (disagreed) with Blackmun. (Since the two Court decisions together are some 76 pages long, we shall focus only on the most defining points here.) Blackmun believed a woman’s right to abortion rested on her “right to privacy” (p. 177). While he noted, “The Constitution does not explicitly mention any right of privacy, . . . whether it be founded in the Fourteenth Amendment’s concept of personal liberty, . . . or in the Ninth Amendment’s reservation of rights to the people, [it is] broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” However, “this right is not unqualified, but must be considered against important state interests in regulation. [Hence] at some point the state interests as to protection of health, medical standards, and prenatal life, become predominant” (p. 178). The latter consideration prompted Blackmun to divide pregnancy into three trimesters—whose boundaries would change over time due to the advance of medical knowledge and technology.
Blackmun also noted that the state of Texas and others on the pro-life side “argue that the fetus is a ‘person’ within the meaning of the 14th Amendment. In support of this they outline the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment” (p. 179).
Blackmun then cites several cases where the mention of “person(s)” occurs. However, he concludes, “But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application” (p. 179).
Blackmun also asserts that, “There has always been strong support for the view that life does not begin until live birth.” Having divided pregnancy into three trimesters, he also states (p. 181), “Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” (Currently, studies show that over 60 percent of infants born at 22 weeks can survive with proper care).
Regarding the physician’s role, Blackmun maintains that, “the abortion decision in all its aspects is inherently, and primarily a medical decision, and basic responsibility for it must rest with the physician” (p. 184). Blackmun’s idea of the relationship between “a woman and her doctor” in this situation seems outdated. In probably greater than 90 percent of legal abortion situations today, the doctor has not cared for the woman over time and is in no recognizable sense “her doctor,” but is the abortionist who receives full remuneration only if the abortion is completed. Furthermore, a majority of abortions result because of social considerations, not medical ones, and therefore the doctor’s medical knowledge and professional advice would be largely irrelevant to most women’s decisions.
The main arguments of dissenting Justice White, Rehnquist joining. “With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review which the Constitution extends to this Court. I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. . . . This issue should be left with the people and to the political processes the people have devised to govern their affairs” (pp. 195-196).
Justice Rehnquist, dissenting: “I have difficulty in concluding, as the Court does, that the right of ‘privacy’ is involved in this case. A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word. Nor is the ‘privacy’ which the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution which the Court referred to as embodying a right to privacy (p. 197).
“The decision here to break the term of pregnancy into three distinct terms and to outline the permissible restrictions the State many impose in each one, for example, partakes more of judicial legislation than it does of the intent of the drafters of the 14th Amendment. The fact that a majority of the States,
reflecting after all the majority sentiment in those States, have had restrictions on abortions for at least a century seems to me as strong an indication there is that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’. To reach its result the Court necessarily has had to find within the scope of the 14th Amendment a right that was apparently completely unknown to the drafters of the Amendment (p. 198). By the time of the adoption of the 14th Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today” (p. 199).
Three Major Critiques of the Abortion Decisions
1. Clarke D. Forsythe is senior counsel with Americans United for Life, where he has worked for over two decades, serving as vice president and general counsel for six years, and overseeing their nationwide litigation and legislative strategy. His book Abuse of Discretion, the Inside Story of Roe v. Wade, published in 2013, is a detailed analysis of Roe and Doe and their impact on America. We shall briefly review some of his analyses.
To begin with, Forsythe notes that both Roe and Doe (R/D) were burdened from the start by two problems. First, “Trials and hearings are supposed to thoroughly weigh the evidence and determine the truthfulness and accuracy of the claims of the parties. In the lower court hearings of R/D, however, the parties did not present evidence—there were hearings, but no trials—and the judges did not look at evidence” (p. 92).
Second, “In addition to the lack of a factual record, the oral arguments were burdened by jurisdictional and procedural issues . . . leaving little time to focus on the substantive medical, historical, and constitutional questions” (p. 97).
In spite of lacking these normal procedures, however, what the Court did do had a great impact (p. 4):
• All abortion laws across 50 states were rendered unenforceable.
• Roe enabled clinics to open in every state, even where they had been illegal.
• By February, clinics, some run by back-alley abortionists, opened in major cities.
• Roe barred public health officials from enforcing health and safety rules in the first trimester.
• Invalidating Georgia’s hospitalization requirement encouraged freestanding clinics to open.
• It gave the federal government oversight over any new state or local regulations.
• It enabled abortionists to challenge abortion laws (e.g., health/safety) in federal court. Moreover, in Doe, the Court defined “health” as “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” Hence, Doe gave the doctor the discretion to see the woman’s emotional stress about her pregnancy as a threat to health, essentially resulting in abortion on demand, even after fetal viability (p. 8).
2. Joshua J. Craddock was completing his training at Harvard Law School when he published “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?” in the Harvard Journal of Law and Public Policy, 42:2 (2017) 539-572. He noted Justice Blackmun’s claim in Roe v. Wade (p. 179) that those seeking to defend Texas’ pro-life law conceded that “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment,” and further noted Blackmun’s own assertion that in “nearly all” other cases where the word person is used, “it has application only postnatally” (p. 179). Craddock then set out to show both parties that they were wrong on this point.
Disagreeing with Blackmun’s statement “We need not resolve the difficult question of when life begins” (p. 181), Craddock suggests that question should have been the primary focus of the case: What is the nature of the preborn individual whose alleged rights to protection we should or need not recognize? Craddock proceeds to lay out the following facts:
a. The word “person” in the dictionaries of the time was used interchangeably with “human being.”
b. No dictionary of the era referred to birth as the event that signals the onset of personhood.
c. The writings of 18th-century legal scholar William Blackstone indicated that in a legal sense, “person” included all human beings.
d. When the 14th Amendment passed in 1868, it granted all “persons” equal protection of the law, and forbade them to be deprived of life without due process of law.
e. By 1868, the states widely recognized children in utero as persons, and 23 (of 37) states and six territories referred to the fetus as a child in statutes proscribing abortion.
Given these facts, Craddock then asked: How did the Roe Court deny the conclusion that the preborn are “persons” protected by the 14th Amendment? The main points of his argument are that:
1. Roe relied in part on the subsequently debunked historical analysis of Cyril Means and others who maintained that early English Common Law and early American Law freely permitted abortion.
2. The Roe Court’s argument that exceptions in state law permitting abortion when the mother’s life was in danger indicated that the preborn were not persons. But other legal scholars indicate that such rare exceptions do not negate the personhood of the unborn.
3. Similarly, Roe argued that variations in state punishments for abortion also demonstrated that the states do not believe in personhood for the unborn. But Craddock notes that factoring in a woman’s degree of culpability, as well as other considerations, accounts for this variation, and does not negate the personhood of the unborn.
4. Roe suggested the lack of consensus about when life “begins” bolstered a conclusion that they should not be considered persons. But Craddock concludes, “. . . the Court’s only legally sound response would have been to ‘err on the side of life, and therefore to legally prohibit all abortions.’ . . . authorizing the killing of an organism ‘without knowing whether that being is a human being with a full right to life’ would constitute willful judicial recklessness.”
5. In denying personhood to the preborn, the Roe Court ignored several of the Supreme Court’s earlier decisions. For example, Levy v. Louisiana (1968), which concerned illegitimate children, stated, “equal protection extends to all who ‘are humans, live, and have their being.’” MacArthur v. Scott (1885) held that “the child in utero is entitled to secure inheritance and property rights.” In the Steinberg v. Brown (1970) case, the Court stated: “Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safe-guarding it.” Craddock’s conclusion may therefore be stated: “The Fourteenth Amendment’s use of the word ‘person’ guarantees due process to all members of the human species. Therefore, the Fourteenth Amendment protects the unborn.”
3. Thomas W. Hilgers, MD, is Director of the St. Paul VI Institute for the Study of Human Reproduction in Omaha, NE, and is board certified in obstetrics and gynecology. Active in the pro-life movement for many years, in 2020 he published the book The Fake and Deceptive Science Behind Roe v. Wade. In the Introduction, he states that Justice Harry Blackmun’s Roe v. Wade decision is “noteworthy for its lack of scholarship, extraordinary bias, its pre-medieval approach to pregnancy-related science and its intellectual dishonesty.” Hilgers notes that “the three main people who appear to have been major sources in the writing and research of Roe v. Wade were themselves leaders in an activist movement to promote abortion and its legalization.” They were Lawrence Lader, whom Justice Blackmun cited eight times in the decision, Dr. Bernard Nathanson, who was the director of the largest abortion clinic in New York City before he converted to the pro-life movement, and Dr. Cyril Means Jr., another early proponent of legal abortion who maintained that abortion had been “a common law liberty” in the 14th century. Blackmun cited Means’ work three times. Lader (who authored the book Abortion) and Nathanson were co-founders of the National Association for the Repeal of Abortion Laws (later the National Abortion Rights Action League or NARAL).
To help prepare for writing the Roe decision, Justice Blackmun did research at the Mayo Clinic Medical Library in Minnesota. Noting that the “medical” citations that Blackmun made in the Roe decision contained no post-medieval sources, Hilgers determined to discover whether Blackmun or his staff had checked out any textbooks on embryology. He found that they had not. Hilgers cites 15 printed papers, textbooks, and reports between 1887 and 1971 that Blackmun could have consulted, which concluded that human life begins at conception. Blackmun also failed to consult modern philosophers on the question of when human life begins, the most recent consulted being St. Thomas Aquinas (died 1274). Yet, to support his decision to legalize abortion nationwide, Blackmun stated, “We need not resolve the difficult question of when life begins. When those trained in medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” (p. 181).
Furthermore, Hilgers notes that “In the lead up to Roe v. Wade, it was argued that there were 5,000 to 10,000 maternal deaths per year due to illegal abortion . . .” He noted that in his book Aborting America, Dr. Nathanson said, “at NARAL, we spoke of 5,000 to 10,000 abortion deaths per year. I confess that I knew that the figures were totally false . . . but in the morality of our revolution, it was a useful figure. ”
Finally, the U.S. Government reported that the number of maternal deaths from all causes of abortion at the end of 1973 was 25, having decreased from 197 in 1965. If thousands of women died from illegal abortions prior to Roe, the reduction in maternal deaths would have been much higher.
Hence, rather than being grounded in scientific data and a thorough consideration of current philosophical thinking, Roe and Doe were based on biased “evidence” to bring about a social policy desired by a few. Our work is before us. Let us also pray to end the killing of the innocent.Cover from 1977fall
Raymond J. Adamek, a retired sociology professor, has been active in the pro-life movement since late 1972. Some half of his over 50 publications have concerned the life issues. Contact Information: 1138 Lower Drive, Kent, OH 44240 Phone: 330-673-5038.