Roe v. Wade, The Good, The Bad and The Ugly

By John  (November 2008)

            There are those who criticize Roe v. Wade who have never considered the underlying basis for the holding or the way this case affects Constitutional Law and the refinement of Constitutional Law.  The case is founded on the pre-existing God given right to “privacy”.  Most of the critics assert there is no right to privacy enumerated in the Constitution.  Well, let’s think that through.  First and foremost, the Constitution as a body was designed as a limiting document, limiting the powers of the federal government.   The addition of the Bill of Rights not withstanding, the founders clearly meant that all powers not specifically provided in the written document were reserved to the States or the People.  In fact, the Bill of Rights guarantee the concept as embodied in the 9^th and 10^th Amendments.  The Bill of Rights in the first eight amendments sought to specify certain areas that the federal government was forbidden to act, yet reserving still those rights not specifically enumerated but nevertheless a grant to the people from the almighty.

            At first blush, Roe v. Wade simply followed the common law as it stood in 1973.  The common law was based on the progress of medical science at that time.  Roe v. Wade said the State had no interest whatsoever in a woman’s pregnancy during the first trimester (3 months), the State had a limited interest in a woman’s 2^nd trimester and had the right to regulate through laws the status of the unborn fetus during the last trimester.  After all, medical science in 1973 could not keep a fetus alive outside of the mother’s womb in the first three months of pregnancy, and, perhaps more importantly, the same held true during the second trimester.  But, medical science in 1973 did have procedures for maintaining the life of a fetus should it leave the nurture of the womb during the last three months of the pregnancy.

            The Supreme Court had previously acted in a privacy context in the earlier case of Griswold v. Connecticut where the state of Connecticut had passed laws prohibiting the use of condoms.  In a challenge to the Constitutionality of the laws, the Supreme Court said that the right of an individual to privacy, which is made applicable to the states through the 14^th Amendment, prohibited the legislatures from passing laws regulating the use of condoms in the purely private confines of one’s own home.  In other words, the state of Connecticut had violated the individual’s natural personal privacy rights by passing such laws.  Privacy was one of those rights of an American citizen derived from “pure natural laws” which are by there very nature fundamental such as the enjoyment of life and liberty, protection by the government, the right to acquire and possess property, the right to travel freely from one state to another, to breath air, protection by the writ of habeas corpus, the right to institute and maintain court actions, the elective franchise, e.t.c.

            In Roe v. Wade, the problem presented in 1973 was that the state of Texas made it unlawful for a woman to have an abortion at any time during her pregnancy, whether during the first trimester or not.  The state of medical science and the state of the common law merged at that point in time.  The Texas law accordingly infringed on the privacy rights of the mother.  The Supreme Court was called upon and did strike down the law in Texas on this very basis of mother’s privacy rights.  The opinion created the controversy when Justice Douglas wrote that the right of privacy emanated from the penumbras of the first eight amendments in the Bill of Rights.  The critics latched onto this wording and argue that there is no specified written right to privacy in the Constitution forgetting that the Constitution created the government and was a limiting document on the powers granted to the federal government.  The Constitution was never intended to list all of the rights of an American citizen which were granted by the Almighty.  Such a narrow reading of the document misses entirely the underlying purpose of the document as a whole.

The Good.  When the states seek to take away a God given right of a American citizen, the Supreme Court is bound to act through the 14^th Amendment to protect those rights.  States do not have unbridled discretion in limiting the God given rights of a free citizen in the United States.

The Bad.  Roe v. Wade was taken by many identifying themselves as “free choice”, to extend the mother’s rights without limitation.  Today, partial birth abortion, or the better name, infanticide, is practiced on a baby not deemed worthy by the mother, or parents, to be worth their bother such as a baby suffering from “down syndrome.”  In fact the Congress has even considered such legislation.

The Ugly.  Modern medical science has developed extensively since 1973.  Not only is it now possible to keep a fetus alive outside of the mother’s womb during much of the second trimester, it is now possible to visualize the development of the human embryo during the first trimester.  Based on these developments, the argument that there is actual life in the womb has empirical foundation.  The “right to life” movement embraces this new technology to argue, as noted with clear evidence, that there is a life being taken during an abortion procedure.*  The hard fact is, the fetus still cannot live outside of the mother’s womb during the first three months, despite having all of the characteristics of a real life living human being and hence is not living.  The fetus is still part of the mother’s body.

            So, is Roe v. Wade good law?  It is clearly arguable that it was good law in 1973.  Perhaps Roe should be revisited in analysis of the implications medical science now imposes on the 2^nd trimester.  But overturned?  Perhaps not, as again the mother does have a federally protected right to privacy.

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*The argument that life begins at conception ignores the biological fact that the fertilized egg must still attach to the wall of the womb.  There are millions of fertilized sperms and eggs that never catch on to the mother’s body to survive.