ST. MARY’S UNIVERSITY

REVISITING ROE V. WADE: ANSWERING JUSTICE BLACKMUN’S ARGUMENT FROM

IGNORANCE

A RESEARCH PAPER SUBMITTED TO DR. BERNARD REAMS IN FULFILLMENT OF

THE REQUIREMENTS OF THE LAW OF BIOETHICS

SCHOOL OF LAW

BY

JOHN BRADLEY WHEELER

SAN ANTONIO, TEXAS

APRIL 23, 2013

ii

TABLE OF CONTENTS

INTRODUCTION …………………………………………………………………………….... 1

I. Abortion History in Roe …………………………………………………………… 12

II. The Medical and Scientific Issues in Roe ................................................................. 22

III. Philosophical and Moral Confusion in Roe ............................................................... 31

IV. Legal Reasons for “Personhood” Being Granted to the Unborn ............................... 29

CONCLUSION ............................................................................................................................ 36

BIBLIOGRAPHY ........................................................................................................................ 39

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INTRODUCTION

Justice Harry A. Blackmun authored one of the most controversial opinions issued by the

United States Supreme Court in the Roe v. Wade decision of 1973. The decision is controversial

because of the weighty issues involved in the case. These issues include the status of the unborn

as “persons,” the right to for a woman’s reproductive freedom, and the state’s interest in

protecting the life of the unborn. Further, the opinion is controversial due to the legal reasoning

used by the Court. In the decision the Court denied the unborn the rights of personhood under the

Fourteenth Amendment and established a constitutional right for a woman to terminate her

pregnancy. Justice Blackmun wrote, “ . . . the word ‘person,’ as used in the Fourteenth

Amendment, does not include the unborn.’”1 As to the woman’s right he stated, “We, therefore,

conclude that the right of personal privacy includes the abortion decision.”2 The result of this

ruling was to overturn the legislative actions of the states which had prohibited abortion;

impacting society in dramatic ways, and igniting a firestorm of debate between parties

advocating on opposite sides of the issue, resulting in an ongoing controversy that continues to

this day.

Social Consequences

The social consequences of the Court’s decision in Roe are many. Since Roe v. Wade was

decided, over 50 million legal abortions have taken place in the United States. 3Roughly, 3,300

abortions occur every day in America.4 Currently twenty-two percent of all pregnancies in the

1 Roe v. Wade, 410 U.S. 113, 158 (1973). 2 Id. at 154. 3 Fact Sheets on Induced Abortion in the United States, Guttmacher Institute (August 2011), http://www.guttmacher.org/pubs/fb_induced_abortion.html (last visited April 21, 2013). 4 Id.

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United States end in abortion.5 The social impact on women is seen in the percentage of women

who have abortions; one in ten women will have an abortion by age twenty; one in four women

by age thirty; and by age forty-five, three in ten women will have had an abortion.6 This means

thirty percent of women in the United States will exercise the right to an abortion granted to

them by Roe v. Wade.

Further the impact of abortion is seen by the social consequences on certain minority

groups. African-Americans represent approximately thirteen percent of the United States

population7 but account for thirty percent of the abortions.8 The Hispanic population represents

just sixteen percent of the United States population9, yet twenty-five percent of abortions take

place within the Hispanic community.10 Together these two population groups represent twenty-

nine percent of the population, but fifty-five percent of all abortions within the United States take

place within these combined minority groups. When contrasted with the abortion rate of thirty-

six percent among the majority non-Hispanic white population,11 which is approximately

seventy-two percent12 of the population, the disproportionate effects upon minorities are evident.

5 Id. 6 Id. 7 Sonya Rastogi, Tallese D. Johnson, Elizabeth M. Hoeffel, and Malcolm P. Drewery, Jr., The Black Population: 2010, United States Census (September 2011), http://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf (last visited April 21, 2013). 8 Fact Sheets on Induced Abortion in the United States, Guttmacher Institute (August 2011), http://www.guttmacher.org/pubs/fb_induced_abortion.html (last visited April 21, 2013) 9 Sharon R. Ennis, Merarys Rios’ Vargas, and Nora G. Albert, The Hispanic Population: 2010, United States Census (September 2011), http://www.census.gov/prod/cen2010/briefs/c2010br-04.pdf (last visited April 21, 2013). 10 Fact Sheets on Induced Abortion in the United States, Guttmacher Institute (August 2011), http://www.guttmacher.org/pubs/fb_induced_abortion.html (last visited April 21, 2013). 11 Facts on Induced Abortion in the United States (2011) http://www.guttmacher.org/pubs/fb_induced_abortion.html (last visited April 21, 2013). 12 Lindsay Hixson, Bradford B. Hepler, and Myoung Ouk Kim, The White Population: 2010, United States Census (September 2011), http://www.census.gov/prod/cen2010/briefs/c2010br-05.pdf (last visited, April 21, 2013).

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A new study conducted by the Guttmacher Institute further illustrates the impact abortion

has on minority populations; it “shows that African American teen abortion rates are more than

twice as high as the national average.”13 According to this study, “the national average is 18

abortions per 1,000 women among 15-19-year olds.”14 Among African-American teens, the

“abortion rate is 41 per 1,000 women among that age group.”15 This rate is four times higher

than non-Hispanic whites abortion rate at 10 per 1,000 and twice as high for Hispanics at 20 per

1,000.16 In New York sixty-seven percent of pregnancies among African-American teens ends

in abortion. 17 This study demonstrates the significant impact abortion has on minority

populations.

Two other groups also disproportionately impacted by abortion are the disabled and the

poor. Forty-two percent of women who have abortion are below the federal poverty line.18 This

rate is five times higher than women who have a higher income above the poverty line. The rate

of abortion affecting the disabled is even higher. Eugenic abortion is frequently performed on

babies who are diagnosed prenatally with Down syndrome. Approximately eighty percent of

children diagnosed are now aborted.19 Since 1989 seventy percent of babies prenatally diagnosed

with Down syndrome have been aborted. In addition to Down syndrome children, a high

13 Katherine Kost and Stanley K. Henshaw, U.S. Teenage Pregnancies, Births and Abortions, 2008: National Trends by Age, Race and Ethnicity, Guttmacher Instittute (2013), http://www.guttmacher.org/pubs/USTPtrends08.pdf (last visited April 21, 2013). 14 Id. 15 Id. 16 Id. 17 Id. 18 Rebecca Wind, Abortion Has Become More Concentrated Among Poor Women, Guttmacher Institute, (May 5, 2010), http://www.guttmacher.org/media/nr/2010/05/04/index.html (last visited April 21, 2013). 19 George Neumayr, The New Eugenics: One of America’s Cures for Disability is Death, The American Spectator, June 2005, at 23.

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percentage of the unborn diagnosed with cystic fibrosis are also aborted.20 One doctor admitted

approximately ninety-five percent of his patients opted for an abortion when prenatal health

screening indicated such health issues.21

Continuing Controversy

The controversial nature of the Roe v. Wade decision is evident in the frequent protests by

parties on both sides of the abortion issue. One place this is evident is in political statements. On

January 22, 2013, President Barak Obama issued a statement in support of the Roe v. Wade

decision. He stated:

On the 40th anniversary of Roe v. Wade, we affirm its historic commitment to protect the health and reproductive freedom of women across this country and stand by its guiding principle that government should not intrude on our most private family matters, and women should be able to make their own choices about their bodies and their health care. Today and every day, my Administration continues our efforts to reduce unintended pregnancies, support maternal and child health, and minimize the need for abortion. On this anniversary, we recommit ourselves to supporting women and families in the choices they make and redouble our efforts to promote safe and healthy communities.22

Three days after the president’s statement tens of thousands gathered at the March for Life, a

pro-life demonstration.23 This event included the Speaker of the House, John Boehner and

former United States Senator, Rick Santorum.24 Speaker Boehner in his address advocated

making abortion a “relic of the past.”25 Senator Santorum shared personally about his wife’s

decision not to abort their daughter, Bella, after they learned that she had a rare genetic

20 Id. 21 Id. 22 Barack Obama, Statement by the President on Roe v. Wade Anniversary, (January 22, 2013), http://www.whitehouse.gov/the-press-office/2013/01/22/statement-president-roe-v-wade-anniversary (last visited April 7, 2013). 23Ashley Parker, 40 Years After Roe v. Wade, Thousands March to Oppose Abortion, N.Y. Times, January 25, 2013, http://www.nytimes.com/2013/01/26/us/politics/40-years-after-roe-v-wade-thousands-march-to-oppose-abortion.html?_r=2&. 24 Id. 25 Id.

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disorder.26 He said in reference to his daughter, “We all know that death is never better, never

better . . . Bella is better for us and we are better because of Bella.”27 On the same day the

president was affirming his commitment to Roe, a group of pro-life protestors convened on the

sidewalk in front of the Supreme Court to pray.28 To mark the occasion they placed 3,300

flowers in memorial to the 3,300 children who are aborted each day and for the 3,300 women

who are wounded through abortion.29 During this same week the National Abortion and

Reproductive Rights League (NARAL) held events commemorating and celebrating the Roe v.

Wade decision of the 1973 Court.30

Perhaps illustrative of the heat and passion involved in the controversy stemming from

Roe v. Wade; is an event on April 2, 2013, on the campus of the Ohio State University. A pro-life

group, Created Equal, set up graphic signs of aborted babies to protest the ongoing results of the

Roe v. Wade decision.31 In response a woman began to break down all the signs, yelling,

“You want an overpopulated earth?” “You want to keep paying taxes from babies that are born to crackheads?” “You really want that?” “You really want a population of people that were born on drugs—that are born into welfare?” she asks, as she uses her foot to crush the image of a tiny bloody fetus, its head smaller than a quarter. “You want to keep paying for that shit?” “Because I don’t.”32

This episode demonstrates remaining division and the high emotions stemming from the Court’s

decision.

26 Id. 27 Id. 28 Patrick J. Mahoney, Pro-life Leaders to Lay 3,300 Flowers, Hold Prayer Vigil and News Conference at the Supreme Court on the 40th Memorial of Roe v. Wade, Christian News Wire http://www.christiannewswire.com/news/2795871319.html (last visited April 7, 2013). 29 Id. 30 http://www.prochoiceamerica.org/donate/special-events/ 31 Yahoo News, http://news.yahoo.com/watch/unhinged-bully-stomp-over-pro-life-signs-092038178.html (last visited April 7, 2013). 32 Id.

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Polling data confirms the division within America on the topic of abortion. According to

a 2013 Gallup poll, forty-eight percent of the population considers itself to be pro-choice and

forty-four percent label themselves pro-life.33 In 2012, the same poll, reported fifty percent of the

population labeled themselves pro-life and forty-one percent pro-choice.34 Over an eighteen-year

period the range has been as diverse as fifty-six percent pro-choice to thirty-three percent pro-life

and fifty-one percent pro-life and forty-two percent pro-choice.35 Gallup’s data demonstrates

over this period that “Twice since 2009 Gallup has found ‘pro-life’ Americans significantly

outnumbering ‘pro-choice’ Americans; however for the most part, have been closely divided in

their identification with the terms.”36

Questionable Legal Reasoning

A decision such as Roe, which decided such weighty matters as personhood and the right

to terminate a pregnancy, ought to be decided on solid legal reasoning, adequately answering the

determinative factors of the case. But many have found fault with the Roe decision, finding it to

be wholly inadequate. Dennis J. Horan and Thomas J. Balch writing about Roe they state:

In the history of American constitutional jurisprudence, few Supreme Court decisions have come to be recognized as so faulty and with such damaging social consequences that history has branded them not only as controversial or erroneous but also as watersheds of ignominy.37

Because of the great consequences and faulty asserted faulty legal reasoning, it is no wonder that

Horan and Balch consider Roe to be in the same category as Supreme Court decisions such as the

33 Lydia Saad, Majority of Americans Still Support Roe v. Wade Decision (January 22, 2013), http://www.gallup.com/poll/160058/majority-americans-support-roe-wade-decision.aspx (last visited April 21, 2013). 34 Id. 35 Id. 36 Id. 37 Abortion and the Constitution: Reversing Roe v. Wade Through the Courts 57 (Dennis J. Horan, et al. eds., Georgetown University Press, 1987).

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Dred Scott (determining that blacks are not citizens), Plessy (upholding segregation), and

Lochner (ruling legislatures could not protect workers by enacting maximum hour laws).38 They

argue, “It is difficult to find a contemporary decision whose reasoning is more universally

questioned by the community of legal scholars.”39 One member of the legal scholar community,

John Hart Ely, who is a supporter of “abortion rights,” wrote in the Yale Law Journal about Roe:

It is, nevertheless, a very bad decision. Not because it will perceptively weaken the Court—it won’t; and not because it conflicts either my idea of progress or what the evidence suggests is society’s—it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives no sense of an obligation to try to be.40

Richard Morgan on the Roe decision writes, “Rarely does the Supreme Court invite critical

outrage as it did in Roe by offering so little explanation for a decision that requires so much.”41

He further states, “The stark inadequacy of the Court’s attempt to justify its conclusions . . .

suggests to some scholars that the Court, finding no justification at all in the Constitution . . .

usurped the legislative function.”42

An Unresolved Determinative Question

One ground for questioning the reasoning of Roe is the Court’s failure to answer the

determinative question in Roe, namely whether or not the unborn are living human persons.

Blackmun acknowledged:

The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course collapses, for the fetus’ right to life would

38 Id. 39 Id. 40 John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 947 (1972-73). 41 Richard Morgan, Roe v. Wade and the Lesson of the Pre-Roe case Law, 77 Mich L. Rev. 1724 (1979). 42 Id.

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then be guaranteed specifically by the Amendment. The appellant concede as much on reargument.43

This question was intentionally left unresolved by the Court. Blackman wrote: We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge is not in a position to speculate as to the answer.44

Instead of answering the determinative question, Blackmun determined the unborn were not

“persons” by utilizing the United States Constitution in an unusual function, namely as a

dictionary and by means of a historical survey. Blackmun wrote:

The Constitution does not define ‘person’ in so many words. Section 1 of the Fourteenth Amendment contains three references to ‘person.’ The first, in defining ‘citizens,’ speaks of ‘persons born or naturalized in the United States.’ The word also appears both in the Due Process Clause and in the Equal Protection Clause. ‘Person’ is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art, I, s 2, cl. 2, and s 3, cl. 3; in the Apportionment Clause, Art. I, s 2, cl. 3; in the Migration and Importation provision, Art. I, s 9, cl. 1; in the Emoulument Clause, Art, I, s 9, cl. 8; in the Electros provisions, Art. II, s 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, s 1, cl. 5; in the Extradition provisions, Art. IV, s 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in ss 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.45

After these comments, he made reference to the historical survey provided earlier in the opinion and wrote:

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.46

43 Roe v. Wade, 410 U.S. 113, 156-157 (1973). 44 Id. at 169. 45 Id. at 157. 46 Id. at 158.

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On this basis he argued. “we do not agree that, by adopting one theory of life, Texas may

override the rights of the pregnant woman that are at stake.”47 Thus, based on dictionary use of

the Constitution of the United States and from a survey of history, the Court denied the unborn

personhood and therefore determined that the right to an abortion is found within the

constitutional right to privacy, leaving the question of when human life begins unanswered. In

other words, the right to privacy was found to trump the right to life or at least life, according to

the theory of life adopted by the state of Texas.

An Argument from Ignorance

Justice Blackmun’s reasoning regarding the question of living human life is problematic

because in his argument he commits two logical fallacies. The first logical fallacy is found in his

assertion:

When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge is not in a position to speculate as to the answer.48

Blackmun’s reasoning in the statement can thus be summarized, “People disagree about when

life begins. Therefore we cannot know when life begins.” His statement fits into a category of

logical fallacy known as an inflation of conflict. The logical from of this fallacy is: “Authority A

disagrees with Authority B on issue X. Therefore, we can say nothing meaningful about issue

X.”49 This fallacy is the basis or justification of his main fallacy, namely an argument from

ignorance. This fallacy is described as, “The assumption of a conclusion or fact based primarily

on lack of evidence to the contrary.”50 The logical form of which is, “X is false, because you

47 Id. at 162.48 Id. at 169. 49 Bennett, Bo, Logically Fallacious: The Ultimate Collection of Over 300 Logical Fallacies. iBooks. http://itunes.apple.com/WebObjects/MZStore.woa/wa/viewBook?id=504639024 50 Id.

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cannot prove that X is true.”51 This fallacy is expressed in Blackmun’s conclusion in the first

fallacy, that it cannot be known when life begins combined with his statement regarding Texas,

“we do not agree that, by adopting one theory of life, Texas may override the rights of the

pregnant woman that are at stake.”52 In other words, because one cannot know when life begins,

Texas cannot assert life begins at conception, because Texas cannot prove life begins at

conception.

Note this does not settle the question. Even if granted that Texas cannot prove that life

begins at conception it is not conclusive that life does not begin at conception. But Blackmun

either assumes the opposite theory of life while at the same time denying that he is endorsing a

theory of life at all. Or he is arguing, because we are ignorant of when life begins; it is

permissible to terminate a pregnancy and end the life or potential life of the unborn. In other

words, since we cannot prove the unborn is a living human person, it is permissible to allow the

unborn to be killed.

Peter Kreeft in his book the Unaborted Socrates, provides a fictional conversation

between Socrates and an abortion doctor name Herrod, which illustrates the danger an argument

from ignorance presents:

Socrates: Your claim to be wise in knowing that you do not know [whether the unborn are living human persons]. Herrod: What remains to be seen in that claim? Socrates: Let’s see. You do not know whether the fetus is a person, correct? Herrod: Correct. Socrates: And your work here is to kill fetuses, correct ? Herrod: Socrates, I am continually shocked by the language you choose to use. I abort unwanted pregnancies. Socrates: By killing fetuses or by something else? Herrod: (Sigh.) By killing fetuses. Socrates: Not knowing whether they are persons or not?

51 Id. 52Roe v. Wade, 410 U.S. 113, 162 (1973).

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Herrod: Oh. Well... Socrates: You said a moment ago that you did not know when the fetus became a person. Do you know now? Herrod: No. Socrates: Then you kill fetuses, not knowing whether they are persons or not? Herrod: If you must put it that way. Socrates: Now what would you say of a hunter who shot at a sudden movement in a bush, not knowing whether it was a deer or a fellow hunter? Would you call him wise or foolish?53

Reasons For Revisiting Roe

The Roe v. Wade decision ought to be revisited by the Supreme Court, as earlier noted in

the paper, the comment by Richard Morgan, “offering so little explanation for a decision that

requires so much.”54 This is important given the decision has had dramatic social impact

resulting in disproportionate effects on certain segments of the population and since legal

scholars on both sides of the issue have found the reasoning of the opinion lacking and less than

constitutional. As the Court has revisited other questionable decisions such as Dred Scott, Plessy,

and Loughner the Court should revisit Roe. Further the apparent fallacious nature of the

reasoning in the decision appears to be a bad foundation to structure so many implications

dependent upon it. Solid reasoning and constitutional reasons are needed to determine the

question of whether the unborn are a living human person. An argument from ignorance is not

sufficient.

Methodology

By using the methodology of Blackmun, namely examining the history of abortion law,

applying medical and scientific evidences and definitions and life, it will be shown the unborn

are living human persons. Further legal reasons, as well as, philosophical and moral implications

53Peter Kreeft, The Unaborted Socrates: A Dramatic Debate on the Issues Surrounding Abortion Kindle Locations 1039-1050 (Kindle Edition 2009). 54 Richard Morgan, Roe v. Wade and the Lesson of the Pre-Roe case Law, 77 Mich L. Rev. 1724 (1979).

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will be examined in this paper, which will demonstrate the unborn should be granted the

protections under the Fourteenth Amendment of the Constitution of the United States. In other

words, this paper will highlight that not only is an argument from ignorance not sufficient to

determine the status of the unborn, but further the undetermined question is possible to answer in

the affirmative for the unborn, and therefore the right to an abortion is inconsistent with

American Jurisprudence and should be overturned.

ABORTION HISTORY IN ROE

Justice Blackmun’s long historical discussion is one of the unusual features of his opinion

in Roe. He utilizes this history in partnership with his lack of finding a constitutional definition

of “person” which would include the unborn as his basis for denying personhood to the unborn.

In it he asserts that the development of laws prohibiting abortion are of relatively recent vintage,

brushing aside well known historical opinions such as the views held by Hippocrates as

embodied in the Hippocratic Oath as mere minority opinions.55 These historical conclusions are

important in making the case for denying personhood to the unborn, especially given there were

many abortion prohibitions were in place at the time the Fourteenth Amendment was ratified.

Further the historical argument is used to circumvent answering the determinative

question. Whether or not legal history has considered the unborn to be living human persons is

inconsequential to whether they actually are living human persons. Blackmun in his use of the

historical argument is arguing, because no one outlawed abortion until the Nineteenth century,

these laws are novel and cannot be supported constitutionally in the absence of the Constitution

mentioning specifically the unborn. The legitimacy and objectivity of the history is necessary for

55 Roe v. Wade, 410 U.S. 113, 132 (1973).

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the argument to carry any weight but not sufficient to justify abortion if the unborn are living

human persons.

Eugenic Roots

A troubling aspect to the history provided by Justice Blackmun in writing his opinion are

his frequent references to the writings of several members of the both the British and the

American Eugenic Society.56 These are referenced both directly and indirectly through the works

of others, which he cites. Understanding “eugenics” and the goals of those who embraced

eugenics is a significant problem to the objectivity of an opinion that has resulted in the

disproportionate effects upon those who are minorities, disabled, and poor.

According to Eugenics Review, “Eugenics is the study of agencies under social control

that may improve or impair the racial qualities of future generations, whether physically or

mentally.”57 Francis Galton who coined the term “eugenics” referred to it as, “the science of the

improvement of the human race germ plasm through better breeding.”58 Merriam-Webster’s

Concise Encyclopedia article on Eugenics states:

The American Eugenics Society, founded in 1926, supported Galton's theories. U.S. eugenicists also supported restriction on immigration from nations with “inferior” stock, such as Italy, Greece, and countries of Eastern Europe, and argued for the sterilization of insane, retarded, and epileptic citizens. Sterilization laws were passed in more than half the states, and isolated instances of involuntary sterilization continued into the 1970s.59

56 Rebecca Messall, The Long Road of Eugenics: From Rockefellar to Roe v Wade, Human Life Review, (Fall 2004), 33, 60 57 Eugenics Review 1923 vol. 14. No. 4, Cover, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2942538/pdf/eugenrev00335-0001a.pdf (last visited April 21, 2013). 58 Leslie Tignor, Introduction to Eugenics, American Bioethics Advisory Commission, http://www.all.org/abac/eugen02.htm (last visited March 26, 2013). 59 Eugenics—Article, Merriam-Webster Concise Encyclopedia, http://www.merriam-webster.com/concise/eugenics (Last visited April 14, 2013).

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The impact of eugenics cannot be understated. A vivid example, which is still good law, is the

opinion of the United States’ Supreme Court written by Justice Holmes in the 1927 case of Buck

v. Bell which permitted the states to sterilize those deemed unfit for reproduction:

The judgment finds the facts that have been recited and that Carrie Buck ‘is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,’ and thereupon makes the order. In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . Three generations of imbeciles are enough.60

For the good of the society, and in the name of better breeding, the Court sanctioned the forced

sterilization of those deemed unfit for reproduction. The decision actually defined a class of

people as being “inadequate to reproduce.” State sponsored sterilization along with an aggressive

promotion of birth control, were the means utilized by eugenicists to promote a more fit or better

human race.

Further illustrative of the impact and goals of eugenics is Margaret Sanger, the founder of

Planned Parenthood and a member of the both the American Eugenics Society and the British

Eugenic Society. Sanger “believed that certain classes of people should not be parents, and if

they would not embrace a childless state voluntarily, it should be forced upon them.”61 Angela

60 Buck v. Bell, 274 U.S. 200, 207 (1927). 61Angela Franks. Margaret Sanger's Eugenic Legacy: The Control of Female Fertility Kindle Locations 93-94 (Kindle Edition 2005).

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Franks noted, “Sanger's ideological aims can best be summarized by the slogan, ‘Quality, not

Quantity.’”62 She wrote herself in The Pivot of Civilization:

On the contrary, the most urgent problem to-day [sic] is how to limit and discourage the over-fertility of the mentally and physically defective. Possibly drastic and Spartan methods may be forced upon American society if it continues complacently to encourage the chance and chaotic breeding that has resulted from our stupid, cruel sentimentalism.63

Her successor as President of Planned Parenthood, Alan Guttmacher, was a former Vice

President of the American Eugenic Society.64 He held the same eugenic views as Sanger. Angela

Franks notes:

In an essay in 1964, he summarized the "indications" for sterilization: "First of all, eugenic; second, therapeutic; third, socio-economic; and fourth, population control." Guttmacher also stated approvingly that " [t] he oldest indication for sterilization in this country is eugenic. We have 28 states with laws governing such sterilization in this country." His description of "socio-economic" sterilizations indicates that these reflected the old eugenic preoccupation with "pauperism": "At my own institution, The Mount Sinai Hospital, because of the type of ward patient living in the slums who attends our clinics, we decided some years ago that it was only humane to carry out a socio-economic program of sterilization." 65

Evident in his statement and in Sanger’s views is approving eugenic means to limit procreation

of those deemed to be inadequate for reproduction including those in poverty. Guttmacher, in

addition to sterilization and birth control, advocated abortion as a means to these eugenic ends.66

Leslie Tignor in an American Bioethics Advisory Commission article Introduction to

Eugenics, asserts this connection between the eugenics movement and abortion decision in Roe

v. Wade, when she writes “The principal manifestations of eugenics are racism and abortion;

62 Id. at (Kindle Locations 290-291). 63 Margaret Sanger, The Pivot of Civilization Kindle Locations 284-287 (Amazon Digital Services, 2012). 64Angela Franks. Margaret Sanger's Eugenic Legacy: The Control of Female Fertility (Kindle Locations 2077-2078).KindleEdition.65 Id. at (Kindle Locations 797-801). 66 Mary Meehan, The Triumph of Eugenics in Prenatal Testing, Human Life Review, Summer 2009, 28, 32.

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eugenics is the basis for ‘scientific racism’ and laid the foundation for legalizing abortion.” 67

This foundation is evidenced by the reliance of Justice Blackmun on the work of Glanville

Williams. Glanville Williams was a member of the British Eugenics Society and is cited in

footnotes nine and twenty-one of the Roe decision.68 Quoting Katharine O’Keefe’s paper on

Crypto-Eugenics, Tignor notes:

The influence of eugenicists on abortion in America is perhaps seen by comparing Roe v. Wade and a book by Glanville Williams, The Sanctity of Life and the Criminal Law. The book is cited in the 1973 abortion decision, but the citations alone do not reveal the full extent of the influence. The central ideas in Roe v. Wade are about personhood, and that section is virtually plagiarized from Williams. Justice Blackmun lifted his whole argument from Williams, including the history of abortion, ancient attitudes, the influence of Christianity, common law, Augustine’s and Aquinas’ teaching, canon law and English statutory law.69

The amount of influence can be seen by comparing history presented by Blackmun in the Roe

decision with Williams’ work. John Cavanaugh-O’Keefe provides a good summary of the

similarities between Williams’ work and Justice Blackmun’s opinion:

The Williams version begins with a discussion of abortion in Greece and Rome, quoting Plato and Aristotle. Blackmun’s version begins with a discussion of ancient attitudes especially the Greeks and Romans, referring to Plato and Aristotle. The Williams version goes on to a discussion of abortion and early Christianity, especially Augustine. It includes remarks about Thomas Aquinas’ speculation about when life begins. Blackmun’s version has a discussion of the Hippocratic Oath, and Christian use of it. The details of the two versions are not the same, but moving from the Greeks and Romans to the history of Christianity is the same. The Williams version then discusses English law, with reference to Bracton and Blackstone. Blackmun’s version discusses common law, referring to Bracton, Blackstone, and Coke. Blackmun next describes the history of English statutory law and gives special attention to Rex v. Bourne. Williams did not have this material, except the specific case. For Williams the next part is American law. For Blackmun, the next part is about American law. The last part of Blackmun’s history reviews the positions on abortion law taken by the American Medical Association, the

67 Leslie Tignor, Introduction to Eugenics, American Bioethics Advisory Commission, http://www.all.org/abac/eugen02.htm (last visited March 26, 2013). 68Rebecca Messall, The Long Road of Eugenics: From Rockefellar to Roe v. Wade, Human Life Review, (Fall 2004), 33, 60.69 Leslie Tignor, Introduction to Eugenics, American Bioethics Advisory Commission, http://www.all.org/abac/eugen02.htm (last visited March 26, 2013).

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American Public Health Association, American Bar Association. This is not taken from Williams.70

One can get a sense of Williams’ eugenic viewpoints from another excerpt from the book

Blackmun referenced and used as the basis for his historical argument. In The Sanctity of Life

and the Criminal Law, Williams wrote:

We need to remember that toleration is a virtue, and that even a strictly moral person may be flexible in his morality exercising his judgment upon the facts of the particular case and not looking exclusively to the rules of a legalistic ethic. Regarded in this spirit, an eugenic killing by a mother exactly paralleled by the bitch that kills her mis-shapen [sic] puppies, cannot confidently be pronounced immoral. And where this certainty is lacking, should not liberty prevail.71

Not only does Williams support abortion, he calls for, at a minimum, toleration toward the

practice of infanticide. Williams is far from an objective historian, but one who holds strong

eugenic views.

Williams is not the only member of a eugenic society referenced in Blackmun’s history

of abortion law in Roe. Charles Tietze, is also referenced in the Roe decision. He was a member

of both the British Eugenic Society and the American Eugenic Society.72 Justice Blackmun cited

Tietze in footnote forty-four in reference to therapeutic abortion. 73 Rebecca Messall notes in

addition to Williams and Tietze there were many other American Eugenic Society members

relied upon indirectly:

Blackmun—by virtue of his heavy reliance on Lawrence Lader’s book Abortion, cited seven times (at footnotes 9, 21, 26, 33, 44, 57, and 58 of the opinion)—indirectly relied on the people and groups to whom Lader’s book expressed profuse gratitude: Glanville Williams, Christopher Tietze, and at least five additional AES members (Alan Guttmacher, the president of Planned Parenthood, Garrett Hardin, professor of biology at the University of California at Santa Barbara; Sheldon Segal of the Population council of

70 John Cavanaugh-O’Keefe, The Roots of Racism and Abortion, 159-160 (2000). 71 Glanville Williams, The Sanctity of Life and the Criminal Law, 19-20 (1957). 72 Rebecca Messall, The Long Road of Eugenics: From Rockefellar to Roe v. Wade, Human Life Review, (Fall 2004), 33, 63. 73 Roe v. Wade, 410 U.S. 113, 149 (1973).

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New York; Sophia Robison of the Columbia University School of Social Work; and Dr. Robert Laidlaw of New York’s Roosevelt Hospital).74

Following the legalization of abortion, the American Eugenics Society changed its name two

months later to the Society for the Study of Social Biology.75 Commenting on the name change,

long time American Eugenics Society President Frederick Osborn remarked:

The name was changed because it became evident that changes of a eugenic nature would be made for reasons other than eugenics, and that tying a eugenic label on them would more often hinder than help their adoption. Birth control and abortion are turning out to be the great eugenic advances of our time. If they had been advanced for eugenic reasons it would have retarded or stopped their acceptance.76

The 1973 name change follows the course that Osborn set in 1956 when he stated,

Let’s stop telling anyone that they have a generally inferior genetic quality for they will never agree. Let’s base our proposals on the desirability of having children born in homes where they will get affectionate and responsible care, and perhaps our proposals will be accepted. It seems to me that if it is to progress as it should, eugenics must follow new policies and state its case anew, and that from this rebirth we may, even in our own lifetime, see it moving at last towards the high goals which Galton set for it.77

Given the history of eugenics in the Roe v. Wade opinion of Justice Blackmun, it is no surprise

that following Osborn’s rhetoric, one of the main justifications for abortion is the importance of

“every child being a wanted child.”78

Cyril Means Historical Distortion

In addition to the eugenic and eugenic influenced histories, Justice Blackmun relied

heavily upon two articles written by attorney Cyril Means, The Phoenix of Abortional Freedom:

Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth Century

74 Rebecca Messall, The Long Road of Eugenics: From Rockefellar to Roe v Wade, Human Life Review, (Fall 2004), 33, 60 75 Id. at 67. Dennis J. Horan and Thomas J. Balch), 125. 77 Frederick Osborn, Galton and Mid-Century Eugenics, The Eugenics Review, 48, No. 1, 15, 22 (April, 1956) (discussing the strategy for making eugenics acceptable). 78 Planned Parenthood League of Massachusetts http://www.plannedparenthood.org/ma/pplm-wanting-every-child-be-wanted-child.htm (last visited April 22, 2013).

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Legislative Ashes of a Fourteenth-Century Common-Law Liberty and The Law of New York

Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of

Constitutionality.79 He is cited in Roe at footnotes 21, 33, 26, 33, 42, and 47. Cyril Means Jr. was

the counsel for NARAL (National Association for the Repeal of Abortion Laws).80 According to

Roden,

Mean’s article propagated one primary myth and two ancillary ones. The principle myth hatched in The Phoenix was that abortion was not a common-law crime. The two ancillary myths that were given a) given the first myth abortion was freely available (and by implication, more socially acceptable) at the time our constitution was adopted and b) given the first two myths there was no historical recognition of the fetus as a person.81

Francis J. Beckwith comments on Means’s legacy, “Since 1973 . . .Means’s work has come

under devastating criticism and for that reason it is no longer considered an authoritative

rendering of abortion law.”82 A note in a legal memo circulated among Roe’s legal team in the

summer of 1971 may explain why devastating criticism is warranted. The note by an intern

working on the case read:

Where the important thing to do is to win the case no matter how, however, I suppose I agree with Mean’s technique: begin with a scholarly attempt at historical research; if that doesn’t work out, fudge it as necessary; write a piece so long that other will read only your introduction and conclusion; then keep citing it until the courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.83

79 Gregory J. Roden, The Abortion Mythology of Roe v. Wade. 30 Issue 1 Human Life Review 65, 65 (Fall 2005). 80 Id. 81 Id. 82 Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice 25 (2007). 83 Justin Dyer, Fictional Abortion History: National Review Online, (December 24, 2012 4:00 AM)), http://nationalreview.com/blogs/print336398 (last visited March 12, 2013).

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Means’s “fudging” on his assertion that the law did not prohibit abortion prior to the 19th

century is evidenced in several examples. One such is the case of Rex v. Beare (Derby, England,

Aug. 15, 1732).84 In this case one Eleanor Beare faced several charges:

[A] Misdemeanor, in destroying the Foetus in the Womb of Grace Belfort, but putting an iron instrument up into her Body, and thereby causing her to miscarry. . . . [and] for destroying the Foetus in the Womb of a certain Woman, to the jury unknown, by putting an Iron Instrument up her Body, or by giving her something to make her miscarry.85

The jury in the trial found Beare guilty and sentenced her to three years in prison and required

her to stand in the pillory for the next two market days.86 The crowd responded so vehemently

against Beare that they “threw such quantities of Eggs, Turnips, etc. that it was thought she

would have hardly escaped with her Life.”87 Roden notes, “Rex v. Beare provides a unique

firsthand perspective on how a common-law court prosecuted abortion; it clearly attests to the

common-law prohibition of abortions resulting in a stillborn child.”88

There is further evidence of laws and or prosecutions for abortion prior to the 19th

century. One is a 1629 prosecution in Virginia:

Miss Howard, an unmarried servant, was arrested after she gave birth in secret to a son who was soon found dead; he may have been America’s first recorded victim of abortion, or he may have died during birth or through infanticide immediately after birth . . . . In this case John Smith and the others found there was insufficient evidence to determine whether the child had died of natural causes or foul play.89

In Maryland, 1652, one Captain William Mitchell after forcing himself upon his twenty-one-

year-old bondservant, Susan Warren and impregnating her, forced her to drink a potion to cause

84 Gregory J. Roden, The Abortion Mythology of Roe v. Wade. 30 Issue 1 Human Life Review, 65, 67 (Fall 2005). 85 Id. 86 Id. at 69. 87 Id. 88 Id. 89 Marvin Olasky, Abortion Rites: A Social History of Abortion in America 20 (1992).

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an abortion. 90 “A grand jury indicted Mitchell for having ‘Murtherously [sic] endeavoured to

destroy or Murther [sic] the Child by him begotten in the Womb of Said Susan Warren.”91 Other

examples of indictments and trials for abortion can be cited in Maryland, 1656 and 1663.92 These

legal proceedings all serve as examples of abortion being prosecuted as a crime prior to the 19th

century and demonstrate that well before the adoption of the Constitution of the United States

abortion was considered a criminal offense and not a common law right. These cases highlight

the problem of Blackmun’s reliance on Means’s “fudging.”

Two other important historical factors neglected by Blackmun’s history need to be

considered. One is that abortion or abortion attempts were rare and legislation was not needed in

early colonial and American societies.93 This is because in the case of unwed pregnancy the

woman was considered a victim and no shame was attached.94 Further the man involved was

required to marry the woman or to support her financially such that the pregnancy caused no

hardship. 95 The second important factor was that abortion laws came into being as medical

knowledge about pregnancy increased during the 19th century. Joseph W. Dellapenna notes,

In summary, the nineteenth century was a period of considerable legislative activity designed to make clear that abortion by any means at any stage of pregnancy for any reason, except to preserve the life or health of the mother, was a serious crime. This was a reflection of two technological developments in the late eighteenth and throughout the nineteenth centuries, both of which created a need for strong anti abortion laws. First, the means of inducing abortion were refined so that abortion was no longer tantamount to suicide . . . .The second development was a gradual discovery of the nature of the gestational process, followed by the widespread conclusion that the foetus was a person.96

90 Id. at 21-22. 91 Id. at 22. 92 Id. at 22-24. 93Id.at29-30.94 Id. at 25. 95 Id. 96 Joseph W. Dellapenna, The History of Abortion: Technology, Morality, and Law, 40 U. Pitt. L. Rev. 359, 406 (1978-79).

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Given Justice Blackmun’s reliance on eugenic history, his neglect of dealing with

historical evidence of prosecutions for crimes of abortion, and his lack of consideration of other

historical factors, his historical account is inadequate to support denying personhood. Rather this

method seems like to provide an odd justification. The fact that as medical knowledge was

increasing and the ability to detect pregnancies earlier resulted in greater restrictions regarding

abortion appear to be a logical progression and a reason to protect the life of the unborn. Dennis

J. Horan and Thomas J. Balch make the same point when they write:

Justice Blackmun’s conclusion that in prior eras abortion in early pregnancy was not seen as homicidal is irrelevant. Indeed an approach coinciding with historical continuity . . . would be to protect the unborn from the time of fertilization because that is when modern science teaches us that the life of an individual human organism comes into being.97

In some sense the argument being made would be akin to the “Flat-earth Society” justifying its

position by arguing the notion of the earth being round is a relatively recent development, which

can be discarded because not all of the ancients, etc. agreed with it. In short the historical

conclusion of Justice Blackmun lacks scientific and medical merit.

THE MEDICAL AND SCIENTIFIC ISSUES IN ROE

Justice Blackmun, in determining Roe, disregarded the “well-known facts of fetal

development”98But given the admission that if the unborn is a living human person then the

appellant’s case “collapses.”99 Medical and scientific knowledge must not be disregarded. This is

true especially in light of the advances in scientific knowledge and technology such as the field

of DNA and genetics, as well as the medical advances in with such items as 3D and 4D

97 Abortion and the Constitution: Reversing Roe v. Wade Through the Courts 61 (Dennis J. Horan, et al. eds., Georgetown University Press, 1987). 98 Roe v. Wade, 410 U.S. 113, 156-157 (1973). 99 Id. at 156-157.

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sonograms. These advances demonstrate provide evidence to answer the unanswered question in

Roe, namely the unborn meet scientific and medical definitions of life.

According to the Biology Online Dictionary, “life” is defined as:

A distinctive characteristic of a living organism from dead organism or non-living thing, as specifically distinguished by the capacity to grow, metabolize, respond (to stimuli), adapt, and reproduce.100

Merriam Webster defines “life”

1. a: The quality that distinguishes a vital and functional being from a dead body. b:aprincipleorforcethatisconsideredtounderliethedistinctivequalityof animatebeings.c:anorganismicstatecharacterizedbycapacityformetabolism,growth,reactiontostimuli,andreproduction.101

Obvious signs of life can be noted within the unborn. First at conception the distinct DNA

signatures of the parents begin to form a unique individual DNA for the unborn child.102 As

noted in the book, From Conception to Birth: A Life Unfolds:

Within 12 hours, the nuclei merge, followed by the commonest of miracles. The 23 maternal chromosomes and 23 paternal chromosomes attach creating the first edition of the 46-volume set of instructions for turning one cell into the trillions that . . . make a complete individual.103

The rapidity of growth can be noted that at 23 days, which is prior to the time a woman actually

knows she is pregnant, the tubal heart beats, rhythmic flow of fluid through the body begins, and

the brain and spinal cord together are the largest and most compact tissues of the unborn.104

100 Life, Biology Online Dictionary http://www.biology-online.org/dictionary/Life (last visited April 22, 2013). 101 Life, Merriam Webster Dictionary http://www.merriam-webster.com/dictionary/life (last visited April 22, 2013). 102 Alexander Tsiaras and Barry Werth. From Conception to Birth: A Life Unfolds 50 (2002). 103 Id. 104 Id. at 69-70.

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Further, “[b]y the end of the first trimester, the fetus has developed all of its major systems.105

No new organs remain to be formed. . . . The fetus is virtually complete in form and function.”106

Embryologist, C. Ward Kischer, observes, “Virtually every human embryologist, and

every major textbook of Human Embryology states that fertilization marks the beginning of the

life of the new individual human being.”107 He further states, “that development and

developmental principles do not cease with birth . . . so the continuum of human development

does not cease until death, whenever that may occur, in utero or at 100 years of age.”108 Kischer

continues:

Every moment of development blends into the next succeeding moment. But, even common sense tells one that this so-called development does not cease at birth. It continues until death. At any point in time, during the continuum of life, there exists a whole integrated human being. This is because over time from fertilization to a 100 year old senior, all the characteristics of life change, albeit at different rates at different times; size, form, content, function appearance, etc. 109

Kischer’s point is simple, “In simple terms, human life is never potential. Life is life. A life that

is not living is dead.”110 Obviously the unborn are life.

One may ask, if we know when life begins, why did Justice Blackmun refuse to answer

the question when he wrote:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge is not in a position to speculate as to the answer.111

105 Id. at 215. 106 Id. at 215 107 C. Ward Kischer, Phd. When Does Human Life Begin? The Final Answer, American Bioethics Advisory Commission http://www.all.org/abac/cke004.htm (last visited March 26, 2013). 108 Id. 109 Id. 110 Id. 111 Roe v. Wade 410 U.S. 113, 169 (1973).

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Dennis J. Horan and Thomas J. Balch provide insight into the issue:

The Court’s conclusion, together with the jumbled “divergence of thinking” it cites on the matter, confuse two distinct questions. One is the strictly scientific question of when a human being comes into existence. The other is the ethical sociological, and legal question of what value to place on that existence . . . . The first question was a subject of legitimate dispute before the scientific discoveries of the nineteenth century—Which explains some of the “diversity” Justice Blackmun recounts. The second question is admittedly being disputed today, and that accounts for the bulk of “diversity.”112

Thus scientifically and medically, the issue is settled, the unborn are living and they are living.

The confusion on the issue is because Justice Blackmun was dealing with a more metaphysical

or philosophical issue as to how to value human life.

PHILOSOPHICAL AND MORAL CONFUSION IN ROE

Justice Blackmun’s confusing of the philosophical and scientific questions of life resulted

in his refusing to answer the determinative question. Instead he muddied the waters and created

a philosophical and theological issue into what was already a scientifically clear issue. Justice

Blackmun wrote:

The absence of a common law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." 113

Notice he is referring to personhood being defined by being infused with a soul. This is not a

legal issue. The legal issue is whether the unborn are living human persons.114 Though this is

properly the purview of philosophers and theologians, the issue to be determined in Roe is not

whether or not the unborn have soul, but whether or not they are living human beings entitled to

112 Dennis J. Horan and Thomas J. Balch, Abortion and the Constitution: Reversing Roe v. Wade Through the Courts 75 (Dennis J. Horan, et al. eds., Georgetown University Press, 1987). 113 Roe v. Wade, 410 U.S. 113, 132-133 (1973). 114 Id. at 156.

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legal protection. This is an issue science has already answered and one from which once

established philosophy and morality have historically made uniform decisions.

Blackmun’s argument against taking up the question of life is grounded in this

confusion which is why he stated:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.115

But the clearer path is to answer the question of whether the unborn are living human beings first

scientifically. Then it becomes clear what rights ought to be attributed to them philosophically

and morally. Apologist Greg Koukl provides an illustration of why answering the question of

“What is it?” is necessary. He writes:

Imagine your child walks up when your back is turned as asks, “Daddy, can I kill this?” What is the first thing you must find out before you can answer him? You can never answer the question “Can I kill this?” unless you’ve answered a prior question: What is it? This is the key question.116

And science has provided that answer.

Further, Justice Blackmun Blackmun’s own opinion demonstrates that when physical life

was determined the law protected that life. He wrote:

The common law. 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. 117

He continued:

The absence of a common law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human,

115 Id. at 159. 116 Gregory Koukl, Precious Unborn Human Persons 7 (1999). 117 Id. at 132.

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or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." 118

Justice Blackmun further noted:

Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common law scholars, and found its way into the received common law in this country. 119

Concerning statutory law Blackmun wrote:

The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but, in § 2, it provided lesser penalties for the felony of abortion before quickening, and thus preserved the "quickening" distinction. 120

And concerning when the quickening distinction ceased to be the point of determination Blackmun wrote:

Gradually, in the middle and late 19th century, the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.121

Clearly the above statements illustrate why the point of quickening was chosen, namely that is

when life was discovered. In other words it is the point in which those with limited scientific

knowledge could discern life. Far from supporting the position that termination of pregnancy was

allowable, Blackmun’s own history emphasizes that when a human life was recognized abortion

was banned. Francis J. Beckwith illustrates this point when he states:

It is interesting to note that as biological knowledge of both human development and the unborn’s nature began to increase, the laws prohibiting abortion became more restrictive. Justice Blackmun was correct when he pointed out that at common law pre-quickening

118 Id. at 132-133. 119 Id. at 134. 120 Id. at 136. 121 Id. at 139.

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abortion “was not an indictable offense.” For it was thought that prior to quickening the unborn was not animated or infused with a soul. But this is an erroneous belief based on primitive embryology and outdated biology. People indeed believed that prior to quickening there was no life and thus no soul, but they were mistaken, just as they were mistaken about Ptolemaic astronomy, the divine right of kings, and white supremacy, none of which seem to be an acceptable belief today even though each is of more ancient origin than its widely accepted counterparts of heliocentricty, constitutional democracy, and human equality.122

Simply put, “As biology acquired more facts about human development, quickening began to be

dismissed as an arbitrary, and irrelevant, criterion by which to distinguish between protectable

and unprotectable human life.”123 Abortion was permissible, according to Justice Blackmun’s

opinion, up until quickening, quickening just happened to be the moment that life was detected

or the certainty of the presence of an unborn became a living human person.124 In other words

abortion was allowable until the question “What is it?” is answered. Francis J. Beckwith quoting

legal scholar John Warwick Montgomery further highlights this point, “they were just

identifying the first evidence of life they could conclusively detect. . . . They were saying that as

soon as you had life, there must be protection. Now we know that life starts at the moment of

conception with nothing superadded.”125 Thus the philosophical quandary created by Justice

Blackmun leading to the unanswerable question of when life begins is answerable. Scientifically

life has already been demonstrated to begin at conception.

The philosophical confusion of Justice Blackmun’s opinion is even more apparent when

considering the argument that the beginning of life cannot be made known, then what is to be

made of the decision in Roe? Francis J. Beckwith makes this observation:

122 Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice 24-25 (2007). 123 Id. at 25 124 Id. 125 Id.

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But if we are to accept the Supreme Court’s holding in Roe and agree with Justice Blackmun that the right to abortion is contingent upon the status of the unborn, then the allegedly disputed fact about life’s beginning means that the right to abortion is disputed as well. For a conclusion’s support—in this case, “abortion is a fundamental right”—is only as good as the veracity of it’s most important premise- in this case “the unborn is not fully human.” So, the Court’s admission that abortion is based on a widely disputed fact, far from establishing a right to abortion, entails that it not only does not know when life begins, but it does not know when if ever the right to abortion begins. Consequently, the Court’s admitted ignorance of not knowing when life begins undermines the right to abortion.126

Worse as Beckwith notes, “according to the logic of Blackmun’s argument, an abortion may

result in the death of a human entity who has a full right to life.”127 As Beckwith continues:

After all if one kills another being without knowing whether that being is a human being with a full right to life, and if one has reasonable, though disputed grounds (as Blackmun admits) to believe that the being in question is fully human, such an action would constitute a willful and reckless disregard for others, even if one later discovered that that being was not fully human.128

This seems like an untenable position, an argument from ignorance with potentially horrifying

and morally repugnant consequences. Further it goes against the history of American

jurisprudence, which strongly values the right to life.

LEGAL REASONS FOR PERSONHOOD BEING GRANTED TO THE UNBORN

Justice Blackmun denied the unborn were persons and therefore the right life to the

unborn on legal grounds by his use of the Constitution as a dictionary. Francis J. Beckwith

addresses this issue when he writes:

The reference to the qualifications of congressmen (Art. 1, Sec. 2 Cl. 2’ Art. 1, Sec. 3, Cl. 3) tells us that a senator must be at least 30 years old and a representative at least 25, but clearly the Court cannot be saying that because a fetus cannot hold these offices that he or she is not a person (for this would mean that 20 year olds are not persons either).129

He further observes that the unborn are not the only class of persons who are not recognized in

126 Id. at 30. 127 Id. 128 Id. at 31. 129Id. at 27.

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the apportionment clause.130 Beckwith notes, “Although the clause excludes the unborn from the

census, it also excludes nontaxed Indians and declares black slaves as three-fifths of a person,

even though Indians and Black slaves are in fact persons.”131

Beckwith then notes there are good reasons why the unborn were not specifically

mentioned in the clause and none of them are a denial of personhood.132 He writes:

There were, of course, important practical reasons that a government might exclude the unborn from the census: it is extremely difficult and highly inefficient to count unborn persons because we cannot see them and some of them die before birth without the mother ever being aware she was pregnant . . . [further] because of the high mortality rate . . . it was uncertain if a child would even be born alive.133

Instead of using the Constitution as a dictionary, which results in the denial of

personhood to more than just the unborn or other logically untenable results, the better course of

action is to look at a legal dictionary definition of person and then see if the unborn meet this

definition and if so extend constitutional rights appropriately. Blacks Law Dictionary defines a

person as “A human being, also termed natural person.”134 The unborn clearly meet the

definition of human being, having human DNA, responding to stimuli and being alive.

Further recognizing the unborn as living human persons and granting them all the rights

of personhood is a position consistent with American jurisprudence. American jurisprudence has

generally protected human life and has corrected itself where personhood and constitutional

rights have been denied (e.g. Dred Scott being corrected by the passage of the Fourteenth

Amendment). Beginning with the Declaration of Independence, Americans have expressed the

view that all humans have an unalienable right to life. As Thomas Jefferson wrote:

130 Id. 131 Id. 132 Id. 133 Id. 134 BLACK’S LAW DICTIONARY (9th ed. iPhone/iPad/iPod 2011).

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We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.135

Mark Trapp writing about the Declaration in the Pepperdine Law Review notes, “Americans

have a special reverence for the Declaration and its philosophy.”136 He continues, “the

Declaration of Independence . . . speaks, most fully, to who we are as a nation—our origins,

purposes, and ideals.”137 Trapp quoting Scott Douglas Gerber, asserts, it is “an expression of the

American mind.”138

Trapp writing about the Declaration comments:

The first of these, indeed the most basic truth of all, is that “all men are created equal.” All men are created equal. The use of the word “created” is very significant for the claims made by this article. Indeed, if the Declaration stated that “all men are born equal,” there would be a much more difficult argument to make. The rights of mankind recognized by the Declaration presumably would not vest until birth, and abortion would be directly in line with this choice of words. Instead, those who wish to justify abortion must overcome the language used by the author of the Declaration. Specific words have specific means. “Created” does not mean “born.” . . . . “Create” is defined as “to cause to exist; bring into being.” While one can argue about when “life” begins, it is much more difficult argue about when a person was “created.”139

Trapp explains the importance of this distinction:

Every person who has ever lived was “created” approximately nine months before being born. That being the case, the moment a sperm and egg unite, a human has been “created,” a human that according to the Declaration of Independence has the rights to life, liberty, and the pursuit of happiness. Because abortion denies the most basic right of all, life, it cannot be justified in a country founded on the proposition that “all men are created equal.”140

135 The Declaration of Independence-1776, 1927 WL 61617 136 Mark Trapp Created Equal: How the Declaration of Independence Recognizes and Guarantees the Right to Life for the Unborn 28 Pepp. L. Rev. 819, 821 (2000-2001). 137 Id. 821. 138 Id. 821. 139 Id. at 823-824. 140Id.

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This historical understanding of the Declaration is important when considering the

history relied upon by Justice Blackmun in the Roe v. Wade opinion, specifically rejects the

notion that everyone is “created” equal. But it is based on the notion that those inadequate to

breed should be sterilized or prohibited from reproducing and that it is a proper exercise of

liberty that is not necessarily immoral for infanticide to be practiced for eugenic purposes. As

previously referenced earlier, Glanville Williams wrote in the book which Blackmun borrowed

his historical outline:

We need to remember that toleration is a virtue, and that even a strictly moral person may be flexible in his morality exercising his judgment upon the facts of the particular case and not looking exclusively to the rules of a legalistic ethic. Regarded in this spirit, an eugenic killing by a mother exactly paralleled by the bitch that kills her mis-shapen [sic] puppies, cannot confidently be pronounced immoral. And where this certainty is lacking, should not liberty prevail.141

The view that there is life not worth living or persons inadequate to breed or that American

society ought to be tolerant of a mother who kills her child like a bitch her puppy for being

deformed is a far cry from the American ideal, that “all men are created equal.”142

This emphasis on the right to life was codified in law in the Constitution of the United

States. The Fifth Amendment expressed this value of the “American mind,” namely, the

unalienable right to life:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.143

This unalienable right is prohibited from being violated by the individual states in the Fourteenth

141 Glanville Williams, The Sanctity of Life and the Criminal Law 19, 20 (1957). 142 The Declaration of Independence-1776, 1927 WL 61617 143 U.S. CONST. amend. V.

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Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.144

This amendment overturned the Supreme Court ruling in Dred Scott. The Dred Scott decision denied personhood to a class of people. Chief Justice Taney, wrote in the decision:

The words ‘people of the United States‘ and ‘citizens‘ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,‘ and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens‘ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.145

Like the Dred Scott decision, Roe determines that a class of people are not citizens, or

persons, who are entitled to protection or rights under the Constitution of the United States. The

Fourteenth Amendment was passed in recognition of the incorrect ruling in the Dred Scott

decision and the injustice of treating a class of persons as property. Thus, where the Court had

acted out of character with the ideal statements of the Declaration of Independence, the

legislature corrected the mistake with the passage of the Fourteenth Amendment, which in

overturning Dred Scott, re-recognized the unalienable right of life. In like manner the Roe

144 U.S CONST. amend. XIV. 145 Dred Scott v. Sandford, 60 U.S. 393, 404-05 (1856).

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decision should be reversed because a class of living human beings are being denied

constitutional rights and the unalienable right to life.

Flowing from the same stream of thought embodied in Declaration of Independence and

in constitutional law are the principles of “beyond a reasonable doubt” and “strict scrutiny.”

“ ‘Beyond a reasonable doubt’” is the standard used by a jury to determine whether a criminal

defendant is guilty.”146 The Court has found this standard to be the means to insure due process

in criminal proceedings. Justice Brennan writes, In re Winship:

The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.' C. McCormick, Evidence s 321, pp. 681—682 (1954); see also 9 J. Wigmore, Evidence, s 2497 (3d ed. 1940). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does ‘reflect a profound judgment about the way in which law should be enforced and justice administered.’147

The Court further stated:

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.148

It is also worth noting the Court applied this standard to children. Writing for the Court Justice Brennan stated, “The same considerations that demand extreme caution in factfinding to protect

146 BLACK’S LAW DICTIONARY (9th ed. iPhone/iPad/iPod 2011). 147 In re Winship, 397 U.S. 358, 361-62, (1970). 148 Id. at 364.

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the innocent adult apply as well to the innocent child.”149 The standard in criminal cases to insure

the protections of the Due Process clause are not violated is “beyond a reasonable doubt.”

Though Roe is not a criminal case, making a decision on whether or not a pregnancy may be

terminated without knowing, as Justice Blackmun admitted, whether or not the unborn are living

human persons, seems to smack against the concept of unalienable rights, embodied by the

standard of proof required for due process in a criminal matter. The question, “Whether or not

the unborn are living human persons?” would not even survive the lesser burden of proof of the

“preponderance of the evidence” given Justice Blackmun’s admitted diversity of opinion on the

matter.

The requirement of “strict scrutiny” is present to safeguard due process rights in cases

having to do with fundamental rights. Blacks Law Dictionary defines “strict scrutiny” as the

standard applied to suspect classifications (such as race) in equal-protection analysis and to

fundamental rights (such as voting rights) in due-process analysis.”150 The dictionary definition

explains, “Under strict scrutiny, the state must establish that it has a compelling interest that

justifies and necessitates the law in question.”151 In Roe, the Court recognized the use of strict

scrutiny writing:

Where certain ‘fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682; Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S.Ct. 900, 904-905, 84

149 Id. at 365. 150BLACK’S LAW DICTIONARY (9th ed. iPhone/iPad/iPod 2011). 151 Id.

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L.Ed. 1213 (1940); see *156 Eisenstadt v. Baird, 405 U.S., at 460, 463-464, 92 S.Ct., at 1042, 1043-1044 (White, J., concurring in result).152

And referenced that other courts in determining the abortion issue had utilized such standard:

In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable.153

Though in Roe, the analysis is focused on the rights of the mother and not on the rights of her

unborn child. This is demonstrated in the discussion and in the Court finding the ‘compelling’

point, in the light of present medical knowledge, is at approximately the end of the first

trimester.154 This is after the Court stated the present knowledge on the matter on determining

life is such that they were not able to answer the question when life begins.155 It seems that prior

to depriving the unborn child of life, that strict scrutiny would require the Court to determine

whether life is indeed what is being deprived, and if indeed the unborn child is found to be a

living person, as Blackmun noted, Roe’s case “collapses” for the state could have no compelling

interest in taking the life of an innocent unborn child who rightfully should be protected under

the Fourteenth Amendment. 156

CONCLUSION

Roe v. Wade is a Supreme Court decision that has greatly divided and impacted American

society by permitting the termination of pregnancies without answering the determinative

question of whether or not the unborn are living human persons. Instead of answering the

152 Roe v. Wade, 410 U.S. 113, 155-56, (1973). 153 Id. at 156. 154 Id. at 163. 155 Id. at 159 156 Id. at 156-57

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question Justice Blackmun in his opinion argued that the unborn are not “persons” because the

Constitution of the United States only made postnatal references. In addition Justice Blackmun

presented a history influenced by members of the American Eugenic Society. Far from objective,

the legalization of abortion based on this history has occasioned eugenic results as demonstrated

in the introduction of this paper with the disproportionate number of minorities, economically

disadvantaged, and disabled who are aborted. Thus a the opinion based on this history results in

serving the goals of eugenics.

The reason given for why the determinative question was not answered is a logical

fallacy known as an argument from ignorance. In other words, the status of the unborn as living

human persons is unknown, therefore they may be killed. The reason the unborn’s status is

unknown because people disagree about the status. This is a second logical fallacy known as an

inflation of conflict.

But there is no reason why the status of the unborn cannot be determined. Scientific

evidence demonstrates the unborn are living. The unborn have their own human DNA at

conception, and manifest all of the signs of life, such as growth, movement, response to stimuli,

etc. Further an examination of history indicates that abortion was prohibited as soon as life was

evident. For this reason abortion laws became stricter as certainty of life was determined, such

that almost all states prohibited abortion by the 1950’s.

American jurisprudence from the founding of the nation has supported the right to life.

This is evident in the Declaration of Independence, the Fifth Amendment, and the Fourteenth

Amendment. Legal requirements in criminal trials such as “beyond a reasonable doubt” and the

requirement of “strict scrutiny” in cases involving fundamental rights illustrate the American

legal systems protection of basic liberties and the unalienable right to life.

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In the past, when the legal system has wrongly discriminated against a class of people,

such as in the Dred Scott case or in Plessy v. Ferguson, the legislature or the Court has corrected

these mistakes. The Roe decision, like these should, be reversed, and the guarantees of the

Fourteenth Amendment should be granted to the unborn because the question of when life begins

has been answered and even if it had not, the doubt is too great to justify the possibility of taking

an innocent human life.

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