Essays

Roe vs. Wade: A Break from Legal History

 

In the Roe vs. Wade case of 1973, the United States Supreme Court made one of the most significant, far-reaching, unprecedented, and immoral decisions in its history, denying personhood to the most defenseless of citizens, the unborn. Rejecting centuries of Judeo-Christian ethics, morality, and law, the court opened the door for millions of unborn children to be killed. However, not only was its decision in the case immoral, the Court's rationale for its decision was intrinsically flawed. On a mere legal basis the Court's majority opinion is more a statement of arbitrary opinion than objective truth. The Court, in its opinion by Justice Blackmun, deviated sharply from established legal history and precedents, following a personal agenda rather than sound legal judgment.

The first main point of the court, that "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage, not of ancient or even common-law origin,"¹ is simply incorrect. The Court indeed does correctly say that the ancient Persians condemned abortion. However, this was not the only ancient civilization that did so. The earliest known laws curtailing abortion were written in the Code of Hammurabi in Babylon, written in 1737 or 1728 B.C. These laws punished a person who unintentionally caused a woman to miscarry. The Assyrian king Tiglath-Pileser I codified laws in the twelfth century B.C. against abortion, condemning a woman to death who intentionally caused herself to miscarry. The Hittites imposed financial penalties upon those who caused abortion. The ancient Egyptians in the fourteenth century B.C. composed a religious hymn to the sun god Aton which talks of him "giving life to the son in the body of his mother" and being "nursed in the womb," indicating that they, at least at the time, showed a respect for the unborn. Ancient condemnation of abortion was also prevalent in Indian religious writings, such as the Vedas and the Vinayas of the Buddhists. The ancient Jews as well opposed abortion, viewing barrenness as a curse and fertility as a blessing, expecting the coming of the Messiah. Anyone who caused a woman to have a miscarriage was to suffer the death penalty.²

In reference to ancient Roman and Greek abortion practices, the Court erroneously says that abortion was "resorted to without scruple."³ Soranus, one of the greatest of the ancient gynecologists, spoke out against abortion. According to Stephen Krason, the poet Ovid had particular distaste for abortion, "the first one who thought of detaching from her womb the fetus forming in it deserved to die by her own weapons."⁴ The first century stoic Musonius Rufus thought of abortion as a "danger to the commonwealth."⁵ The Court interprets Plato in his Republic to be in favor of abortion. Socrates, quoted in the Republic, appears to desire the death of children who were not born of the highest caste in the city, "if a child is born…they must dispose of it on the understanding that there is no food or nurture for such a one."⁶ However, he is not necessarily referring to abortion or infanticide, as he talks of bringing "such conceptions into the light."⁷ Socrates simply means that those children that are born of parents outside of childbearing years shall not be prayed over and not have social acceptability. He also indicates that children "who may be born defective...will be put away as is proper in some mysterious, unknown place,”⁸ not killed or exposed. It seems highly unlikely that Socrates would have desired abortion for normal children whose parents were outside the permitted age limits of child-bearing if he does not want to abort defective children, a practice that was common in ancient Greece. In addition, even if Socrates were advocating abortion, it would not be for the reason of giving to parents a right to abortion, as the court is advocating in Roe vs. Wade, but to attain the desired objective of the city. In Book V of Plato's The Laws, he proposes not abortion but colonization as a last resort for controlling population. The Court is also wrong in saying that "Greek and Roman law afforded little protection to the unborn.”⁹ According to Krason, Lycurgus, the ancient Spartan lawgiver, and Solon, his Athenian contemporary, both prohibited abortion. The late historian Arturo Castiglioni states that under Caesar Augustus, Roman law punished abortion: "The law against abortion was…strict. Thus the Lex Cornelia prescribed that whoever gave an aphrodisiac beverage or caused an abortion should be punished with deportation and the loss of his goods. If the patient should die as a result of these practices, the guilty party was condemned to death." The emperors Septimus Severus and Antonius Caracalla both punished abortion with banishment.¹⁰ Harold J. Brown indicates that the Greeks and Romans shared the belief that abortion is undesirable because interfering with the course of nature is wrong. Thus the Court is wrong in suggesting that abortion was not the matter of legislation or moral rebuke in ancient Greece or Rome.

The Court also says that the Hippocratic Oath “was not uncontested even in Hippocrates’ day” and that the oath represented “only a small segment of Greek opinion.”¹¹ The Court quotes the late Ludwig Edelstein in his 1943 work, The Hippocratic Oath, in which he says that the Oath represented “only a small segment of Greek opinion.”¹² However, according to Harold J. Brown, the Court was suggesting that Edelstein believed that because the Oath originated from a small minority, the Pythagoreans, it does not represent universal and unchanging principles. This interpretation by the Court, according to Krason, is a reflection of its underlying philosophical position in these decisions that universal truths are unknowable.

In its discussion of abortion at common law, the Court states that “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 Court also stated that “whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed.” However, abortion at English common law was indeed a crime both before and after “quickening.”¹³

The Supreme Court relies on the work of Cyril Means to determine the stance of common law on abortion. Means uses three cases to show that abortion was a liberty at common law. The first is a 1327 case which he calls the Twinslayer's Case, in which a man beat a pregnant woman, who later gave birth to twins, one dead and the other bruised, who later died as well. The man was indicted but later released because the judges were unwilling to judge this event as a felony: "the accused was released to mainpernors, and the argument was adjourned sine die.”¹⁴ Means interprets this decision to indicate that the judges did not think abortion a felony. The proper interpretation, according to Robert M. Byrn, another critic of Cyril Means, was that "the justices' dilemma was rooted in problems of proof. Had the two-day-old twin died from the abortion or some other cause?"¹⁵

The next case used by Means to justify abortion using common law is called The Abortionist’s Case. In this case, a man "was indicted for killing a child in the womb of its mother, and the opinion was that he shall not be arrested on this indictment since no baptismal name was in the indictment, and also it is difficult to know whether he killed the child or not, etc."¹⁶ Means interprets this as being proof that abortion was not a crime at common law. However, Byrn again says that if that were the case, then either there would have not been an indictment in the first place or the indictment would have been dismissed expressly on that ground.

Another case, called Sim's Case, was also used by Means to try to show that common law permitted abortion. In this case, a man beat a pregnant woman and the child was born with bruises and later died. The judge said that if it can be proven that the bruises came from the beating, then it is murder. He also says that if the child is born dead, it is not murder. The Supreme Court declares that the killing of a child in the womb is not an indictable offense, but as Krason points out, this is not a case of voluntary abortion. The court in this case is unable to indict for murder, but nothing is said about not indicting for a lesser offence.¹⁷

Another proof of the illegality of abortion at common law is the testimony of the common law commentators. The Court refers the writings of Bracton, Fleta, Coke, and Blackstone. The Court acknowledges that Bracton regarded abortion as homicide. Fleta agrees with him and includes liability of the woman herself.¹⁸ Edward Coke wrote in his Third Institute that if a woman kills her unborn child or if it dies from a man beating her, "this is a great misprision, and no murder ," However, if the child is born alive and dies from the attempt of the woman or someone else to kill it, then "this is murder." The term misprision, according to Blackstone, are "such high offenses as are under the degree of capital, but nearly bordering thereon." Since Coke calls abortion in this case a "great misprision," this definition does not express the severity of the crime for him. Blackstone in his Commentaries "regarded abortion as an offense against the unborn child" and that he believed the unborn child to be endowed with a "legally protected right to life."¹⁹ These three common law cases and the testimony of these common law commentators clearly show that, contrary to the Court, abortion was an indictable offense at common law.

In its discussion of abortion in American statutory law, the Court states that abortion statues replaced the common law only after the Civil War and that the purpose of the 19th century statues was to protect the mother. Both of these two statements appear to be false. Eugene Quay, whom the Court refers to in its opinion, includes an appendix of all the statutes concerning abortion in all the states and territories before 1860. He shows that "thirty-one of the eventual fifty states had statutes punishing abortion before the Civil War."²⁰ In saying that the statutes put in place were for the protection of the mother, the Court is implying that they were not intended to protect the child. An 1858 New Jersey case, State vs. Murphy, disproves this theory. In the case, the court said that "the act was purged of its criminality, as far as it affected the mother, by her consent. It was an offence only against the life of the child."²¹ An 1851 case, Smith vs. State, declared that "In both these instances [when a woman induces her own abortion or miscarries after being beaten] the acts may be those of the mother herself and they are criminal only as they are intended to affect injuriously." According to Krason, the statute was held to provide that every person who successfully caused an abortion of an unborn child, whether quick or not, would be subject to punishment. In addition, two other decisions, State vs. Gedlicke and State vs. Siciliano, held that the New Jersey statute did protect the unborn child and not just the mother. It is thus apparent that the criminal abortion laws of the 19th century were put in place not only to protect the mother, as the Court indicates, but also to protect the child.

The Court is also incorrect in its description of medical history .The Court states that "when most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis. Even after 1900...standard modem techniques such as dilation and curettage were not nearly so safe as they are today.”²² The source of this information is A Hundred Years of Medicine by C. Haagensen and V. Lloyd, published in 1943. According to Krason, the page number refers to a chapter in the book titled, "l8th Century Surgery and its Limitations." This chapter does not make any reference at all to abortion nor does the entire book, including the chapter on obstetrics and gynecology. Because the Court's reference describes medicine of the 18th century, it cannot be used for arguing that the abortion statutes passed in the 19th century were put in place to protect the woman from unsafe abortion procedures. Also, the Court is wrong in assuming that surgery was the most common method of abortion in the 19th century: "drugs, the human finger, and the water douche were among accepted methods of inducing abortion.”²³ The Court's understanding, therefore, of the dangers of abortion to women in the 19th century is not very good nor is the Court's interpretation of the state cases accurate. The Court implies that the original purpose of the statutes was the protection of the woman. It also says that medical advances have made abortion a relatively safe procedure. According to the logic of the Court, if these two premises were true, and since abortion was not a crime at common law, then the statutes against abortion from the 19th century are unconstitutional as they have outlived their purpose. Since we know these premises to be false, the logic of the Court must necessarily be false as well.

The status of the unborn child, according to the Supreme Court, is that they "have never been recognized in the law as persons in the whole sense."²⁴ However, modern tort law and property law show this not to be the case. In the case of Bonbrest vs. Kotzin, a federal court in the District of Columbia rejected any idea that the unborn child was at any time a part of the mother's body. It set the rule that recovery of damages for the unborn child was to be permitted at least at viability. According to Krason, this landmark decision caused almost every other jurisdiction that had previously rejected recovery to permit it. Sixteen states had allowed parents to bring wrongful death actions on behalf of their unborn child by the time of Wade. These wrongful death actions presuppose that a person existed in the first place, saying just the opposite of what the Court says, that unborn children are truly persons.

In property law, the Court is again proved wrong in saying that unborn children are truly persons in the eyes of the law. Blackstone wrote that the unborn child is capable of having a guardian assigned to him and to have an estate for his use. In American courts, the unborn child could be in a will and have property left to him and share in the proceeds of a trust from his father's death, not from the date of his birth.²⁵ In the case of In re Holthausen 's Will, the court decided that "It has been the uniform and unvarying decision of all common law courts in respect of estate matters for at least the past two hundred years that a child en ventre sa mere [in his mother's womb] is 'born' and 'alive' for all purposes for his benefit." In 1969, the Fifth Circuit U.S. Court of Appeals held that a child conceived before his father's death had the right to receive Social Security benefits.²⁶ Before Roe vs. Wade, the unborn child was also entitled to receive child support payments from his father just as if he was born. The case of Metzger vs. People, the Colorado Supreme Court held an upheld an order for a man to contribute thirty percent of his income to support his unborn child.

The Supreme Court concludes that the unborn child, according to the Constitutional provisions, is not recognized as a "person." According to Krason, at the time of the writing of the Constitution and the framing of the 14th Amendment, a "fetus" was understood to be a person under the protection of the law. The Court interprets the provisions for a person in the qualifications for elected office to exclude the unborn. It is true that the unborn cannot be elected to office, but according to the Court's logic, anyone under the necessary age for elected office is also not a person either. The extradition provisions would also exclude children under the age of seven from personhood, as a child under this age is incapable of committing a crime and would not be subject to extradition laws. The apportionment clause excludes Indians not taxed as persons and blacks as three-fifths of a person, yet the Court would not, as it does in Wade, treat Indians and blacks as non-persons.

The drafters of the Fourteenth Amendment, contrary to the belief of the Court, did not intend to deny unborn children personhood. At the time of the adopting of the 14th Amendment, "there were at least 361aws enacted by state or territorial legislatures limiting abortion.”²⁷ The "drafters did not intend to withdraw from the States the power to legislate with respect to this manner.”²⁸ The District of Columbia Divorce Act of 1860 provided that the offspring of a second marriage "born or begotten before the commencement of the suit [for divorce], shall be deemed to be the legitimate issue [offspring] of the parent, who, at the time of the marriage, was capable of contracting." The use of the word "begotten" shows that Congress intended to give legal rights to the unborn. On March 3, 1873, Congress passed, just five years after the 14th Amendment, the "Act for the Suppression of Trade in, and Circulation of...Articles of Immoral Use," which prohibited the selling, lending, or giving away "of any article…for causing unlawful abortion," This clearly indicates that Congress was not excluding the unborn in the 14th amendment. In the 1860's the territories of Arizona, Colorado, Idaho, Montana, and Nevada all passed laws making it a crime to perform an abortion. This legislation had to undergo Congressional approval. The same Congressmen and Senators who passed the 14th amendment also approved this legislation.²⁹

The Supreme Court makes it clear that it believes that a right to privacy exists under the Constitution by using several of its precedents to back this up. However, the cases used by the Court are, in the words of Krason, "qualitatively different" from abortion. These decisions used by the Court deal with such issues as searches and seizures, telephone taps, possession of obscene materials within the confines of one's own home, and others unrelated to abortion. Of the cases used by the Court, the ones that refer to contraception and sterilization are the only ones that might apply since they involve the state intervening in reproductive affairs, as is the case in abortion. However, even these cases are not applicable precedents in the matter. First, contraception by its very nature is different than abortion. It is the prevention of new life rather than the termination of life that already exists. Second, there is nothing private about going to an abortion clinic and having an abortion. The woman meets doctors and people whom she has never met and detailed records are kept. It is not at all similar to the privacy of using contraceptives in one's own bedroom or bathroom. The Court also uses the case of Griswold vs. Connecticut to prove a right to privacy, in which an anti-contraceptive law was struck down because, according to the court, it "operated directly on an intimate relationship between husband and wife" which is "repulsive to the notions of privacy surrounding the marriage relationship.”³⁰ However, this right to privacy is different in nature than a woman's supposed right to privacy to abort her unborn child. Griswold speaks of marital privacy whereas abortion deals with individual privacy. In the words of the dissenting opinion of Justice White, joined in by Justice Rehnquist, "I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply 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.”³¹

Before Wade and Bolton, the right of the unborn child to life when it came into conflict with other rights was always upheld. In the case of Hoener vs. Bertinato, the parents of an unborn child refused to have a blood transfusion even though doctors had said that it would be necessary to save his life. The court said that the parents were neglectful of the child and removed him right after birth to the welfare department to insure that the transfusion be given. In Raleigh Fitkin-Paul Morgan Memorial Hospital vs. Anderson, the court again ordered a necessary blood transfusion for a pregnant woman. The court indicated that its concern was the child, not the mother. In the case of Gleitman vs. Cosgrove, the parents of a child born with defects sued a doctor for malpractice because he did not inform them of the birth defects of their child, in which case they would have aborted him. The New Jersey Supreme Court said that "Though we sympathize with the unfortunate situation in which these parents find themselves, we firmly believe the right of their child to live is greater than and precludes their right not to endure emotional and financial injury."³²

Not only has the Court deviated from legal history, the majority decision also seems to have been motivated by a personal agenda. Justice Blackmun's wife was quoted saying to one of his law clerks that "You and I are working on the same thing, me at home and you at work."³³ Justice Powell, realizing that "the Constitution did not provide meaningful guidance" on the issue, felt that he would 'just have to vote his 'gut'" on the issue, a clear violation of objectivity. The majority opinion states that "We need not resolve the difficult question of when life begins."³⁴ These justices seemed more interested in promoting their own opinion than in objectively interpreting the law.

The dissenting opinion, written by Justice Rehnquist, is legally incorrect in its rationale against the majority opinion. Justice Rehnquist does make a valid point, that no woman had standing to take these cases to court. As the women would be pregnant when they first filed the complaint, they would at least be in their third trimester when the case was decided by the lower court. Since the majority opinion recognizes the state's rights to proscribe abortion in the third trimester, the women would have no case. Rehnquist also goes on to say that "The decision here partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment."³⁵ However, Justice Rehnquist disagrees with the majority opinion because of its judicial activism, not because it is intrinsically illegal and unconstitutional. He, like Justice Byron White, think that abortion is something for the states to decide, not the courts, and if the states think that abortion is legitimate, then so be it. Far be it from the courts to restrict the states. This is, of course, illegitimate and illegal. The majority opinion favoring abortion is intrinsically illegal. Justices Rehnquist and White disagree with it not because they are against abortion, but because they wish to see the states decide the question, not the courts. Since it has been shown that legalizing abortion would be illegal and unconstitutional, the dissenting opinion therefore must also be illegal.

The Supreme Court, in its majority opinion in Roe vs. Wade, deviated sharply from sound legal history and precedents and violated the Constitution, following a personal agenda rather than sound legal judgment. The Court's references to common law, American statutory law, tort law, and almost every other area of law brought up by the majority opinion all are subject to serious doubt and question in regards to their truthfulness and historical accuracy. The Supreme Court, in light of what has been discussed, is not legally correct in its pro-abortion decision. The Court perverted the law in an attempt to follow personal agendas. Unfortunately, it is the millions of unborn babies who will never see the light of day who suffer the most as a result of this most criminal and unjust of decisions.

James Bascom
School year 2001-‘02

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Endnotes

¹ Roe vs. Wade 410 U.S. 129 (1973).
² Stephen M. Krason and William B. Hollberg, The Law and History of Abortion: The Supreme Court Refuted, 1984, pp. 2-3.
³ lbid., 3.
⁴ lbid., 3.
⁵ Ibid., 3.
⁶ Plato, Republic, apud Krason, p. 3.
⁷ Ibid., 3.
⁸ Ibid., 4.
⁹ Wade, 130.
¹⁰ Krason, 5.
¹¹ Wade, 131.
¹² Ibid., 132.
¹³ Ibid., 132-134.
¹⁴ Krason, 6.
¹⁵ Ibid., 6.
¹⁶ Ibid., 6.
¹⁷ Ibid., 6.
¹⁸ Cf.
¹⁹ Ibid., 7.
²⁰ Ibid., 9.
²¹ Ibid., 10.
²² Wade, 149.
²³ Krason, 11.
²⁴ Wade, 162.
²⁵ Krason, 12.
²⁶ Ibid., 12.
²⁷ Wade, 174-175.
²⁸ Ibid., 175.
²⁹ Krason, 14.
³⁰ Ibid., 15.
³¹ Reverend Dwight Campbell, "The Illegality of Roe v. Wade," Homiletic and Pastoral Review, January 1988.
³² Krason, 16.
³³ Bob Woodward and Scott Armstrong, The Brethren (New York: Simon and Schuster, 1979).
³⁴ Wade, 159.
³⁵ Ibid., 174.

 

Bibliography

Campbell, Dwight. "The Illegality of Roe v. Wade." Homiletic and Pastoral Review, January 1988.

Hamilton, Alexander, et al. The Federalist Papers. New York: Bantam Books, 1982.

Krason, Stephen M. and William B. Hollberg, The Law and History of Abortion: The Supreme Court Refuted, 1984.

"Roe v. Wade." 93 S. Ct. 705, 1973.

Woodward, Bob and Scott Armstrong, The Brethren. New York: Simon and Schuster, 1979.