The Case For Overturning Roe v. Wade (Commentary)

An anti-abortion activist at the March for Life rally on January 25, 2013, in Washington, D.C.

An anti-abortion activist at the March for Life rally on January 25, 2013, in Washington, D.C.

By Michael Blissenbach ‘15

Forty years ago the United States Supreme Court ruled in Roe v. Wade that abortion was a right protected by the Constitution. Since that decision was handed down, 55 million human fetuses have been slaughtered and the abortion debate shows no signs of letting down. While abortion has moral, religious, and legal implications, what this debate boils down to is the question of whether or not a human fetus is a person.  If a human fetus is a person, then he/she is entitled to protection under our laws.  If an unborn child is not a person, then it is not entitled to such protection.

I argue that the unborn child is indeed a human being from the moment of conception and, thus, a person deserving of protection under our laws. This is evident from what science has shown us about fetal development, and from observing how our society and legal system treats pregnancy.

First, when a human sperm fuses with a human egg, a human zygote is brought into being with its own DNA. A few weeks later, the human zygote becomes a human embryo, with a detectable heartbeat and functional nervous system. Some eight months later, the fully-developed human being emerges from his/her mother’s womb. What is growing and developing inside of a pregnant mother clearly is not a walrus or a turtle or a tumor. Rather, the unborn has all the marks of an infant: human DNA, blood type, fingerprints, functioning organ systems, and gender.  All the essential factors for development are there at conception, and what happens over the nine months of gestation is further development and growth.

Several states are beginning to recognize the humanity of the fetus. While partial-birth abortion was banned under the Partial-Birth Abortion Act of 2003, and subsequently upheld in Gonzales v. Carhart, some states have gone further in their efforts to protect life. New requirements in some states mandate that women contemplating abortion undergo an ultrasound, receive information on fetal development, and become educated on alternatives to abortion. Evidence that a human fetus can feel pain during the second trimester prompted Arizona and Kansas to recently ban abortions after 20 weeks.

Our culture already recognizes the humanity of the fetus when a pregnant woman brings the pregnancy to term.  An expectant mother looks forward to seeing ultrasound images of her “baby.” Moreover, when a human fetus is stillborn, the family mourns the loss of the fetus as the loss of a child, often including some sort of memorial service and burial.  I know this to be true as the older brother of a child who was stillborn. Yet when a pregnancy is unwanted, the human fetus is not treated as a human being, but a “parasite” or “growth” to be disposed of as the expectant mother wishes.

This discrepancy is also found in our nation’s laws concerning pregnancy.  When someone murders a pregnant woman, 38 states and the federal government charge the person with a double homicide. Yet when a woman decides to terminate the life of the human fetus growing inside of her, the state doesn’t recognize that fetus as a human being.

Either a human fetus is a human being or it isn’t. To treat a human fetus as a person when the pregnancy is wanted and as a non-person when the pregnancy is not wanted is logically inconsistent. If a human fetus is a human being when the pregnancy is wanted, then it is also a human being when the pregnancy is not wanted.

The Declaration of Independence states that every human being has the right to life, liberty, and the pursuit of happiness. Forty years ago the United States Supreme Court took those rights away from a class of human beings based on its stage of development, and it is my hope and prayer that this grave injustice will come to an end in my lifetime.

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13 comments

  1. Colin Carmello · · Reply

    What specific individuals think about their womb-tenants is largely irrelevant to the discussion. I, for example, believe my dog is a member of family. I refer to my dog as my child, take her with me, and almost universally ask if she is permitted to join me in visiting friends or family. I know many others who are as passionate about their pets being part of the family as I am. I also feel quite strongly that animal cruelty is more serious than its punishment would suggest and that laws designed to prevent are not enforced as strictly as they should be. None of that makes my dog a person.
    I agree it is inconsistent to treat the murder of a pregnant woman as a double homicide, but the conclusion that it should be treated as a single homicide follows just as logically as yours.
    I don’t like abortion. As a rule, I believe it should be avoided. In circumstances where pregnancy is merely “inconvenient,” it is simply irresponsible to rely on abortion as birth control; it’s expensive, it’s risky, and it’s unnecessary. On the other hand, I also recognize that situations exist where abortion is really the only logical choice–e.g., where it is evident that neither the pregnant woman nor the fetus will survive if the pregnancy persists, it makes sense to me that it is better to save one life at the expense of the other (if it is life, and I remain unconvinced, but this is also irrelevant in this context) than to let both of them go. I am also sympathetic to situations involving rape. It isn’t nearly as clear in my mind as the life or death scenario just described, and I’m not set on a particular outcome in such a circumstance, but I am sympathetic to it.
    It is much messier in all those cases in between. I am not of the mind to impose my scruples on others. I am also not convinced that there is a life being saved by banning abortion. I remain unswayed.

    1. + 1

  2. […] case why Roe v. Wade should be overturned for my law school's unofficial student newspaper. theredirect.wordpress.com/2013/01/25/the… #prolife […]

  3. Meaghan M · · Reply

    @Colin, I have a question. You said you don’t like abortion. My question is, why is that? I believe because its almost impossible to ignore that is is morally questionable at best. I think of it in torts causation terms: but for an abortion, a human enters the world and lives a life with unlimited potential. Virtually everyone I know that is pro-choice agrees that abortions should be much less than they are now. The problem is, they just simply aren’t. 55 million in 40 years. We’re talking about all the largest cities in the US combined, plus some. In the name of privacy.

    I’m all for privacy and women’s rights. But all rights must be balanced with other rights. Life is THE right, the core of liberty, from which all other rights extend. To argue that privacy trumps an individuals liberty is astounding. The only way you can believe that is that the fetus is not a human. As science has developed, that argument is getting more and more difficult. At 8 weeks, all the organs are present in the fetus, and most abortions occur after 8 weeks. OK, thats all for now 🙂

  4. Although the question of whether or not a fetus is a “person” may have tremendous consequences for the political and moral debate on abortion, it is completely absent from the legal issues involved. That is, Roe (and subsequently Casey) rely on the premise that the 14th Amendment protects a women against state prohibitions on sensitive matters of women’s health (that’s a simplistic description but it will do). The argument put forth by challenges to Roe and Casey is that the Constitution contains no such protection. That is what the 40 year old legal fight is over. Not whether a fetus has independent rights under the Constitution. Indeed, Justices Scalia — the Supreme Court’s most ardent critic of Roe — has made clear his view that overturning Roe would allow states to write their own laws on abortion, but not grant independent rights to the unborn. This view is drawn from Scalia’s position that the Constitution should be interpreted in accordance with its original public meaning at the time of the Constitution’s adoption. According to Scalia, the Constitution was not originally understood to protect a women’s right to abortion services. Similarly, the constitution was not originally understood to grant any rights to an unborn fetus.

    Although the article puts forth some interesting question on morality, its legal analysis is almost assuredly incorrect.

  5. Mike E., thanks for your thoughts. Although I have a lot of respect for Justice Scalia, this is one area where I think he’s wrong. I think if you can establish that an unborn child is a human being, then the Equal Protection clause of the 14th amendment would compel the federal government to grant legal personhood to unborn children.

  6. I agree with Colin, to an extent. I believe that abortion is a lot like divorce. It’s a sad thing and a very serious decision. You should try everything you can to avoid it and take proper precautionary steps. If you’re having a lot of them, you need to re-evaluate your life. But sometimes, it is the best option. Sometimes women need abortion.

    I appreciate that Michael Blissenbach bases this piece around the fact that he personally believes that life begins at conception, though some of his sources do seem quite biased. However, I find his arguments are a bit thin. It is well and good to say that *you* believe that life begins at conception, but I would not stretch it so far as to say that “fetal development…and [our] legal system” support that contention.
    Especially in the case of fetal development, there really isn’t any part of gestation that science can point to and say that, at that moment, the fetus has a soul. And isn’t that what this all boils down to? Whether or not fetuses are human life?

    I believe–as the Catholic church used to believe–that life begins at quickening. Despite that, I still think that second- and even third-trimester abortions should legal, accessible, and safe. Just because my personal morals don’t align with something doesn’t mean that I think it should be illegal. No-one’s opinion on your private life should have a bearing on the law.

  7. Marissa, with all due respect, regarding Catholic teaching on human life, your statements are erroneous. While some theologians in the middle ages speculated that human life began at quickening, the teaching of the Catholic Church never adopted those theories, as this statement from Cardinal Rigali and Bishop Lori makes clear. http://www.ewtn.com/library/bishops/rigalilorimis.htm

  8. Marissa, also, I don’t think the relevant question is ensoulment, but when biological human life begins. I think we know when human life begins based on science, but even if we didn’t know, wouldn’t it be better to err on the side of caution and not permit the destruction of human embryos and fetuses, rather than risk destroying an innocent human being?

  9. Michael, perhaps I misspoke (mistyped?). You are completely correct that the Catholic church has always derided terminating a pregnancy as a sin.
    However, until Pius IX removed the distinction between an animated and unanimated fetus, there was a difference in the magnitude of wrongdoing depending on whether the fetus had quickened. It was believed that a life was terminated, but perhaps not necessarily a human life. Now I’m not saying that the Church was supportive of abortions before the late 1800s, but I do think it’s interesting that the Church made a distinction; excommunication being dependent the fetus’ animation.
    I’m sure you know all of that, but I felt like I should at least explain that I’m not totally off my rocker.

  10. Anonymous · · Reply

    morals are like elbows. everyone has one, but they may not be just like yours. what i find moral, you might not and vice versa. why should your view of morality rule the day? morality has no place in the discussion.

  11. Anonymous, I don’t seek to have Roe v. Wade overturned on moral grounds, but on human rights grounds. An entire class of human beings are being denied their rights, and I seek to put an end to that.

  12. Anonymous · · Reply

    LOL at michael blissenbach playing the “human rights” card when he has already publicly “come out” against equal rights for homosexuals. maybe he should re-read the positional conflicts section of his legal ethics case book.

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