Abortion and the Law

Former Milwaukee County Circuit Court Judge Victor Manian

On January 22, 1973, the United States Supreme Court, in a decision by seven of the nine justices, held that state statutes prohibiting abortion were unconstitutional. The decision has divided the nation, leaving no middle ground for any reasonable compromise. Since the decision, it is estimated that an abortion is performed in the United States at a rate of 1.3 million every year.

There is no question that abortion is a method of destroying human life. The issue decided by the United States Supreme Court in Roe v. Wade, however, was one of personhood. The United States Constitution, the supreme law of the land, protects persons. A person is defined as one who is born alive. Before birth, the life is not a person.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Because the unborn child is not a person, this constitutional provision does not prohibit extinguishing its life. According to the court, the Fourteenth Amendment protects the “right to privacy” of the mother. Although the Constitution does not specifically mention any right of privacy, this right has been fashioned by the court as within the penumbra of the Constitution.

From this determination, the court deduced that the Fourteenth Amendment meant that the mother could do what she wanted with her body, including submitting to an abortion. The court was aware of the course it was setting. In the introductory paragraphs of the decision, Justice Blackmun, the author, wrote:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.

The court went on to describe the historical underpinnings of its decision. It pointed out that statutes making abortion a crime were of relatively recent origin. Most past civilizations did not criminalize abortion. The court admitted that the Hippocratic oath which strongly prohibited physicians from performing abortions dated back to 460 B.C. Soronos, an ancient Ephesian, whom the court described as the great gynecologist, strongly opposed abortion. And, in spite of the fact that 36 states prohibited abortion in 1868 when the Fourteenth Amendment was adopted, the modern interpretation of that amendment invalidated all those state statutes.

The court discussed the ancient confusion concerning when human life begins and pointed out the Aristotilian theory of the three stages of development: vegetable, animal and rational; rational occurring at birth. The court pointed out that Augustine adopted the idea of three stages of development, but held that the fetus was infused with a soul when it became animated.

The court then pronounced its own trimester formula. It held that although a woman’s right to privacy left the decision to abort to her alone, that right was not absolute.

In the first trimester, the decision to terminate what the court described as “the potential life” is left to the mother and her physician. The medical hazard to the mother is slight and, therefore, at this stage of the pregnancy, the state has no valid reason to interfere with the abortion.

In the second trimester, the medical risks to the mother increase to the point where the state has some responsibility to establish regulations for the safety of the mother. These regulations, however, must not be so onerous as to effectively deny the mother the abortion she seeks.

In the third trimester, after the unborn child has become capable of existence independent of the mother, the state has a valid interest in the fetus. At this time the state may forbid abortion, except to save the life of the mother.

When the second major abortion case was decided by the Supreme Court, there was some optimism that more refined medical information and legal arguments would result in reversal of Roe v. Wade. Some thought that the acceptance by the Court of some restrictions on the right to an abortion and the public outcry after Roe v. Wade might presage a fresh view of the controversy. The Supreme Court, however, in City of Akron v. Akron Center for Reproductive Health, Inc., et al (1983), by a 6 to 3 vote, reaffirmed its Roe v. Wade decision. The court declined to review the medical and historical basis for the original ruling, but instead invoked the doctrine of stare decisis. Stare decisis means that the court will stand by its decision and not disturb settled points.

The court stated:

These cases come to us a decade after we held in Roe v. Wade that the concept of personal liberty guaranteed by the Constitution, encompasses a woman’s right to decide whether to terminate her pregnancy. Legislative responses to the court’s decision have required us on several occasions, to regulate the performance of abortions. And arguments continue to be made… that we erred in interpreting the Constitution. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. We respect it today and reaffirm Roe v. Wade.

Because the Supreme Court has held that a woman has a constitutional right to an abortion, no congressional or state statue can modify it. The only way that the Supreme Court decision can be changed is if the Supreme Court reverses itself or by a constitutional amendment. Neither option appears imminent or likely.

Bombing abortion clinics, publicly displaying aborted unborn children, and similar techniques serve only to convince people that pro-lifers are a lunatic fringe. We live in a nation of laws. As long as abortions are legal, we must accept that fact, no matter how reluctantly. This does not mean we should do nothing. The most effective way to combat wholesale abortion is by convincing those contemplating such action that it is wrong. Counseling centers such as those established by Christian Life Resources enjoy success in this area. Assurance and support for troubled women who come to the Christian Life Resources pregnancy care centers are saving more and more babies and their mothers. They deserve our support.

I have deliberately avoided couching this article in moral or religious terms. I believe that prohibition of abortion is justified on the basis of history, medical, and legal principles, the will of the people and simple logic and common sense. Add to this the Word of God and I believe there is an irrefutable argument against abortion.


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