Part 3

Blackmun and Co Miss the Point

Susan E. Wills, Esq.

One could fill a book with evidence refuting Ederlina Co’s attempts to defend the Roe v. Wade opinion on its own terms. I would like to mention two books in particular in this rebuttal essay.

The first book is What Roe v. Wade Should Have Said (edited by pro-choice Yale law professor Jack M. Balkin).[1] In this volume, eight pro-choice law professors offer “concurring opinions” in which they attempt to justify Roe’s legal outcome on constitutional grounds, something Justice Harry Blackmun famously failed to do. Trying to divine a right to abortion in the Constitution on the basis of women’s equal protection, the privileges and immunities clause, sexual or reproductive freedom, privacy, autonomy, or any other theory (e.g., Harvard law professor Laurence Tribe’s pet theory of abortion as part of religious freedom, since repudiated by him) is an interesting academic exercise but one doomed to fail from the get-go.

By default, only Balkin undertook the utterly impossible task of justifying Blackmun’s opinion on the spurious grounds Blackmun chose: the Ninth Amendment’s reservation of rights to the people or the Fourteenth Amendment’s concept of personal liberty on substantive due process grounds. Balkin produces a more coherent opinion than Roe—it could hardly be less so—but one too like the original in its misleading and tortured interpretation of constitutional text, history, and legal precedent.

Ms. Co posits that the Roe Court’s holding and reasoning “deserve the utmost respect from both future Courts and genuine legal scholars.” But where is the “genuine legal scholar” (other than Balkin, playing an intellectual parlor game for his publisher) who will defend Roe’s reasoning? Despite the atmosphere of pro-choice political correctness that permeates the groves of legal academe, anyone who publishes a defense of Roe’s reasoning would be a laughingstock. No, respect will forever elude this opinion.

The Role of Revisionist Abortion History in Roe v. Wade

The second book is the 1,283-page Dispelling the Myths of Abortion History by Villanova law professor Joseph W. Dellapenna.[2] Citing over 2,000 legal cases and offering about 9,000 footnotes, Dellapenna’s book systematically demolishes the fraudulent version of abortion “history” that takes up fully half of the Roe opinion.

Blackmun’s rendition of abortion law and practice through the millennia was concocted by Cyril Means, Jr., general counsel for the National Association for the Repeal of Abortion Laws (NARAL), the predecessor to Co’s NARAL Pro-Choice America. Blackmun relied heavily on two articles by Means, citing them seven times. Sarah Weddington, representing “Jane Roe,” stated that “the Justices had copies of Means’ articles on the bench with them during the oral arguments.”[3] And Weddington referred to Means’s version of abortion history three times in her oral argument.

Co echoes Means in claiming that “at the beginning of the nineteenth century—and at the time the Constitution was adopted—no state had banned abortion.” Not so. Dellapenna describes dozens of prosecutions for injury abortions and “ingestive” abortions in both ecclesiastical and lay courts in England in the late fifteenth and sixteenth centuries.[4] Legal records by the end of the sixteenth century “indicate that both forms of abortion were capital felonies regardless of consent or (more typically) lack of consent by the woman undergoing the abortion attempt.”[5] He also describes abortion prosecutions in the American colonies that were “consistent with the law of England” or were “more restrictive of abortion.”[6]

Concerning these laws, Co echoes the false claim made by Means/Blackmun that such laws were enacted “not to protect the unborn but to protect women’s health.” Evidence for that assertion rests on an isolated comment selectively plucked by Means, which described an 1858 New Jersey statute’s purpose as protecting the mother’s life. In a passage immediately preceding that statement, however, the New Jersey court explained that the protection of the child’s life was the purpose of the prohibition against abortion in the common law, and the statute was meant to supplement common law by adding protection for the mother.[7]

Means also claimed he could find no nineteenth-century abortion case that reflected a legislative intent other than protecting the mother. Dellapenna, however, found seventeen cases in the nineteenth century that describe the protection of fetal life as the primary reason for statutes prohibiting abortion.[8]

A Privacy Right to Abortion?

Co relies, as Blackmun did in Roe, on a string of non sequiturs. Here’s one: From the fact that the Supreme Court has found “zones of privacy” in certain amendments to the Constitution—e.g., dealing with the privacy of one’s home, papers, and lawful personal communications—one is also bound to declare abortion a constitutionally mandated privacy right. If that were true, one would also have to conclude that any action performed within the home (child abuse, incest, illicit drug use, possession of child pornography) is also, therefore, constitutional.

Here’s another non sequitur: On the basis of privacy understood as personal autonomy, one can conclude that any act one deems essential to one’s “concept of existence, of meaning, of the universe, and of the mystery of human life,”[9] i.e., one’s personal moral code, cannot be infringed by law. This is just plain silly. That would mean that one could punish only those criminals who admit they violated standards of conduct to which they subscribe. And under this theory of privacy, if pedophilia gave meaning to a man’s life and he objects to its legal prohibition, he could not be prosecuted.

Co next refers to a line of cases that, she believes, were based on a “right of privacy.” Except for the cases involving contraception (Griswold and Eisenstadt) which were immediate predecessors to Roe, other cases cited by the Court and Co relied not on privacy per se but on the protection of parental rights and marriage. Loving v. Virginia struck down a ban on interracial marriage. Meyer v. Nebraska and Pierce v. Society of Sisters upheld parental decision-making regarding their children’s education. Skinner v. Oklahoma found unconstitutional a state law mandating sterilization of inmates found guilty of certain crimes. And even Griswold v. Connecticut, striking a ban on contraceptive use by a married couple, mentions privacy only in the context of posing this rhetorical question: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”

But abortion does not fit neatly among these marital and parental rights. It negates them.

The right to procreate in Skinner is nullified by a pregnant woman’s right to abort. After Roe, a man no longer has the right the Supreme Court acknowledged in Skinner to bring children into the world. He now has only a “right” to fertilize an ovum, creating an embryonic human being whom his partner then has nine months to destroy without his knowledge or consent.

The fear of government intruding into the marital bedroom searching for evidence of contraceptive use drove the Griswold Court to find a privacy right for married couples to use contraception in the “penumbras, formed by emanations from” various guarantees in the Bill of Rights. But however closely abortion and contraception may be linked in purpose and effect, they are worlds apart in terms of privacy. Abortions do not take place in the “sacred precincts of marital bedrooms”; preventing abortion does not require investigation of private sexual behavior; and, finally, abortions involve personnel other than spouses.

Co is left with the dubious Eisenstadt decision, which has been read to extend the marital privacy right to use contraceptives to unmarried people. Yet the 4-2-1 decision involves overturning the conviction of a college lecturer for the illegal distribution of a can of contraceptive foam to a woman whose marital status was not even in the record. Extending the use and distribution of contraception to unmarried people was therefore not warranted by the facts of the case and should be considered “dicta,” therefore not controlling in future cases. The can of foam was also readily available over-the-counter. In short, this is a strange decision (in a trumped up “test case”) on which to base the entire justification for abortion being a “privacy right.”

Is There a Right to Abortion in the Fourteenth Amendment?

Co accuses me of being too “restrictive” and “simplistic” in stating that the Fourteenth Amendment was not intended to create any new rights but to secure to all persons the rights and liberties already guaranteed by the Constitution. Intentionally misconstruing my point, she cites the “incorporation doctrine” of the Fourteenth Amendment as proof that this amendment creates new rights by extending recognized constitutional rights and liberties to citizens of the states. But these are not substantively new rights and liberties, simply because states will also be forbidden from violating them. Nor are “fundamental rights” in any sense “new rights.”

From time to time, such fundamental rights have been acknowledged by the Supreme Court, according to a specific methodology articulated most recently in the assisted suicide decisions—Washington v. Glucksberg and Vacco v. Quill (finding no substantive due process liberty to commit suicide or have assistance in doing so). Glucksberg reiterates the Court’s inquiry for determining if a fundamental right exists that should be acknowledged in the Fourteenth Amendment:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the due process clause specially protects those fundamental rights and liberties that are, objectively, “deeply rooted in this nation’s history and tradition” … [and] “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” … Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. … Our nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking” … that direct and restrain our exposition of the due process clause.[10]

The right to own property, to marry, to bear and rear children, and to refuse unwanted medical procedures are examples of such fundamental rights acknowledged—not newly minted—under the Fourteenth Amendment. Killing fellow humans by abortion and assisted suicide flunk the test of being deeply rooted in this nation’s history and tradition.

To be sure, there is precedent for finding new “substantive due process” rights in the Bill of Rights, but unfortunately for Co, those precedents have been thoroughly discredited. The prime examples of new substantive due process rights found in Supreme Court jurisprudence are Dred Scott v. Sandford and Lochner v. New York. The former is considered to be one of the two or three worst abominations in the history of the Supreme Court, and the “Lochner era” ended in the doctrine’s repudiation in 1937.

One final point about Justice Blackmun’s presumed reliance on the Fourteenth Amendment: In assessing constitutionality, it’s customary for a judge to look at the text, historical context, and legislative history of a provision of the Constitution. Blackmun and Co have made apparent no effort to do this. Professor Jeffrey Rosen of the George Washington University School of Law provides historical context to the adoption of the Fourteenth Amendment, which alone argues strongly against the notion that the amendment was intended to recognize a “right” like abortion:

When the Fourteenth Amendment was ratified in 1868, thirty of the thirty-seven states in the Union had passed laws restricting abortion. All but three of these states—Arkansas, Minnesota, and Mississippi—banned abortion throughout pregnancy. Seven of the twenty-seven states that banned abortion throughout pregnancy punished abortions after quickening more severely than those before quickening, but the other twenty states punished abortions equally regardless of when they were performed. The effect of these laws was to ban abortion from conception, unless necessary to save a mother’s life—precisely like the Texas law before [the Court in Roe]. Since the statute before [the Court in Roe] had been adopted by a majority of states when the Fourteenth Amendment was ratified, it clearly does not violate the Fourteenth Amendment as originally understood.[11]

The Ninth Amendment as a Source of Abortion “Rights”?

Co chastens me for ignoring the Ninth Amendment as a source of the abortion “right.” Hers is not the prevailing understanding of the Ninth Amendment as taught, one must suppose, in every accredited law school.

The distinguished law professor Michael Stokes Paulsen, with customary clarity, provides a succinct explanation of why the Ninth Amendment could never be reasonably considered a source for a right of abortion:

[The] Ninth Amendment to the Constitution … is plainly not itself a grant of (unspecified) further rights but a rule of construction about the legal effect of the Constitution’s enumeration of other rights. The Ninth Amendment is a rule of non-pre-emption; the enumeration of certain federal constitutional rights does not itself operate to displace or vitiate other legal rights resting on other legal authority. Most obviously, such retained rights consist of individual rights that exist by virtue of state law, including state common law and state constitutions. The enactment of a federal Bill of Rights, the Ninth Amendment says, does not repeal such other rights. But the amendment scarcely creates new, unspecified, substantive federal constitutional rights. …

The Ninth Amendment is a cognate provision with the Tenth Amendment, which adopts an analogous rule of non-pre-emption by clarifying that unenumerated governmental powers are reserved to the states or to the people. The Tenth Amendment clarifies for state powers what the Ninth Amendment clarifies for state citizens’ rights.[12]

The Fourteenth Amendment and the Unborn

Both Justice Blackmun and Co find it dispositive that under the language of the Fourteenth Amendment the word person does not specifically include unborn children. In their view, by failing to be defined as a person under that amendment, unborn children have no claim on the government to protect their lives, liberty, or property. This point, argued extensively in Roe, is a monumental red herring, calculated to draw attention away from two salient points they miss.

First, as Yale law professor John Hart Ely artfully observed: “The argument that fetuses lack constitutional rights is simply irrelevant. … Dogs are not ‘persons in the whole sense’ nor have they constitutional rights, but that does not mean the state cannot prohibit killing them.”[13]

Second—and here’s the crux of the abortion problem for all defenders of Roe: Abortion takes the life of a living human being. If the Court had had the integrity to acknowledge this self-evident and indisputable scientific fact—one all the more obvious today to anyone who’s seen an ultrasound image or fetal photo (one could visit, for example, www.secondlookproject.org/tslp_fetal.html) or glanced through a biology textbook or read a factual description of partial-birth abortion—there would have been no protracted discussion of balancing the privacy or liberty interests of a mother against the life of her child. Western legal tradition does not allow lesser rights, like privacy or sexual freedom, to trump more fundamental rights, like the right to life.

Moreover, if abortion were just another surgical procedure, like removing an appendix, wisdom tooth, or tumor, there would be no need for a fifty-page legal opinion (and countless books and journal articles) trying to justify the surgery on constitutional grounds.

Surely this cognitive dissonance must come to an end, and soon. How long can our legal system deny an unborn child his inalienable right to life simply because someone wants him dead? How many 4-D ultrasounds or heartbreaking stories of unrelenting grief following the abortion loss of a child will it take to convince educated and well-intentioned people like Co of the reality human life before birth? Please God, no longer.

[2] Joseph W. Dellapenna, Dispelling the Myths of Abortion History (Durham, N.C.: Carolina Academic Press, 2006).

[3] Ibid., 144.

[4] Ibid., 176–183.

[5] Ibid., 185.

[6] Ibid., 228.

[7] Ibid., 286.

[8] Ibid.

[9] Planned Parenthood v.Casey, 505 U.S.833 (1992).

[10] Washington v. Glucksberg, 521 U.S. 702, 720–721 (1997).

[11] Jeffrey Rosen, “Rosen, J., dissenting,” in Balkin, What Roe v. Wade Should Have Said, 173-174, note 1.

[12] Michael Stokes Paulsen, “Paulsen, J., dissenting,” in Balkin, What Roe v. Wade Should Have Said, 198, note 1.

[13] John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82 (1973): 926.

NEXT: Ederlina Co responds to Susan Wills.