Mar 07

Pro-Choice vs. Pro-Life

Ethan Book for U.S. Senate



For a number of years, there has been a prominent public debate on the abortion issue, that is of the pro-abortion position versus the pro-life position. The opposing positions have tended to be emotional and vocal. There are several key points that have been largely missed in this protracted debate. Because of the fact that Roe v. Wade is a real Supreme Court case, the first issue is not whether some of the general public likes abortion and others adhere to a pro-life position but rather whether Roe v. Wade was decided correctly. That is, the first question is not what some of us want or don't want but what the proper reference point is for reviewing and resolving the issue. The second key factor that must be understood is who are the proper players to affirmatively address the issue. Unlike how many seem to believe, they are not members of our Congress who would or should decide the issue. Rather they are the state legislatures and state courts which should decide how the matter is to be resolved, that followed by federal courts where there is a constitutional challenge. Perhaps members of Congress can be agents to facilitate meaningful and directed public discussion on the matter. However, for the type of federalism that was established by our founding fathers, they are not the members of Congress who would be the proper parties to decide the issue. With this understanding, I offer my thoughts on the issue.

 As background, I make reference to the public debates of 2008 between then presidential candidates Barack Obama and John McCain. At one point during about late summer, there was an interview between the two candidates and world-renowned Christian pastor and author Rick Warren. During the interview, Pastor Warren asked the candidates at what point of the pregnancy and birth process did the embryo, fetus or infant become a human being. Senator McCain quickly responded "[a]t the point of conception."  Mr. Obama, after some deliberation, commented "[t]he answer to that question is above my pay grade". At this point, I interject that without ever fully resolving that fundamental question, Mr. Obama, both as a candidate and as President, has espoused positions in support of abortion, in support of federal funding for abortion and also in support of late-term abortion.  I further point out that much of the argument of those who favor abortion focuses on a presumed broad woman's right to privacy.

Now it is important for us to review Roe v. Wade. It is my impression that amidst all of the vocal, intense and long-term debate on the pros and cons of abortion, probably less than one out of every thousand members of the general public have ever read the case and that probably less than one out of every hundred public officials who discuss the issue have ever read the case decision. I have read the 51-page decision which is cited as Roe v. Wade, 410 U.S. 113 (1973). Also, I have reviewed other discussion and commentary of the case including that which is provided by Judge Robert Bork in The Tempting of America - The Political Seduction of the Law(1991, Simon & Schuster, New York), particularly at pages 111 - 116.

The case deals with Jane Roe (a Court approved pseudonym), a pregnant single woman who presented a challenge to Texas criminal abortion laws. Judge Bork begins his discussion as follows:

The subject of abortion had been fiercely debated in state legislatures for many years. It raises profound moral issues upon which people of good will can and do disagree, depending upon whether they view a fetus as fully human.. and therefore not to be killed for anyone's convenience, or whether they think the fetus less than human so that the desires of the pregnant woman should be paramount. Whatever the proper resolution of the moral debate, a subject which there is no need to address here, few people imagined that the Constitution resolved it. (atp. 111)

However, that is what the Supreme Court did in 1973 with a majority opinion of Justice Harry A. Blackman.

Judge Bork goes on:

... From the beginning of the Republic until that day, January 22, 1973, the moral question of what abortions should be lawful had been left entirely to state legislatures. The discovery this late in our history that the question was not one for democratic decision but one of constitutional law was so implausible that it certainly deserved a fifty-one page explanation. Unfortunately, in the entire opinion, there is not one line of explanation, not one sentence that qualifies as legal argument. Nor has the Court in the sixteen years since ever provided the explanation lacking in 1973. It is unlikely that it ever will, because the right to abort, whatever one thinks of it, is not to be found in the Constitution. (at p. 112)

At the early portion of the decision, Justice Blackman reviewed ancient attitudes including those of the Persian Empire, the Greeks, the Romans, and the "Ephesian, Soranos, often described as the greatest of the ancient gynecologists ... " (410 U.S. at p. 130). I like Judge Bork's comment~

None of this, it will be noted, is of obvious relevance to the Constitution. Nor was any of this material employed as history that might illuminate the meaning of any provision of the Constitution. (at p. 112)

It is of note that the decision points out that Connecticut was the first State to enact anti-abortion legislation [at p. 138 referring to Conn. General Statutes, Title 20, Section 14 (1981)].

The Court decision then discussed three reasons to explain why the states might seek to enact laws limiting abortions: "a Victorian social concern to discourage illicit sexual conduct; concern for the hazards abortion posed for women; and concern for prenatal life" (410 U.S. at pgs. 148-150).

Again, Judge Bork waxes eloquent:

... Note that the very concept of sexual conduct that is "illicit" is dismissed with the pejorative "Victorian". This accurately reflects the Court majority's allegiance to untrammeled individualism and its position in our cultural wars. (at p. 112)

Regarding a presumed right of privacy, the decision even acknowledges that "[t]he Constitution does not explicitly mention any right of privacy" (410 U.S. at pgs. 152 - 153). However, a support for what the Court was about to do, Justice Blackman cited other cases decided under the first, fourthand fifth amendments. However, those important amendments do not deal withany right of privacy as is used to support abortions. Judge Bork's analysis is worth reciting~

It is difficult, therefore, to understand why the Roe opinion supposes that these cases show the extension or reach of the right of privacy. They do nothing of the sort. Marshaling these decisions as if they were precedents merely emphasized the absence of support for the right.  The invented right of privacy had not been applied in any Supreme Court case other than ones involving contraception.

The focal point of the decision, the cornerstone of it, is a simple assertion:

The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is. or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

Based on my own study of constitutional principles, I fail to comprehend how the 14th Amendment, which deals with equal protection and due process provisions for state and local government action, might apply to a personal decision regarding abortion. I do, however, understand how the 9th Amendments provision for reservation of rights to the people might apply to a right of privacy. The problem is that if one is to recognize and uphold the mother's right of privacy, then particularly where there is no complete review and resolve of when a fertilized egg becomes a human life, one must also recognize and uphold the embryo's right of privacy (perhaps at least through competent court-appointed legal representation), and also regardless of what point it would be recognized that the embryo is a human life, one should recognize the father's standing as an affected party to object to any abortion.

An important Supreme Court decision to affirm a right of privacy was Griswold v. State of Connecticut, 381 U.S. 479 (1965). The case dealt withthe challenge of a married couple to a state statute which banned birth control (a pre-conception concept). The decision affirmed a limited right of privacy.

A separate Supreme Court case of Jacobson v. Commonwealth of Massachusetts, 25 S. Ct. 358 (1905) discusses the 9th Amendment. It quotes Crowley v. Christensen, 137 U.S. 86, 89, 34 L. Ed. 620, I I Sup.Ct.Rcp. 13:

Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will .... It is then liberty regulated by law. (25 S. Ct. at p. 361)

The Jacobson decision continues:

In the Constitution of Massachusetts adopted in 1780, it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for "the common good," and that government is instituted "for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of anyone man, family, or class of men." (25 S.Ct. at p. 361 quoting Com. v. Alger, 7 Cush 84)

This discussion leads us to another important consideration. Judge Bork makes an important and revealing observation:

In the years since 1973, no one, however pro-abortion, has ever thought of an argument that even remotely begins to justify Roe v. Wade as a constitutional decision. Justice Blackman frequently discusses the case in public, but the only justification he offers is not legal but moral [or should we say social]: the case, he says, is a milestone on women's march to equality. (at p. 115)

It is my view that what Justice Blackman really meant to say is that the case is a milestone on some women's (probably constituting merely a minority of women) ill-conceived and misguided march on independence and dominance. It is my view that the currently prevailing loss in our nation and society of reasonable gender interdependence in domestic matters and the kinds of enabling and moral shielding that is all too prevalent in government agencies and courts and which is epitomized by liberal abortion laws are primary factors in high divorce rates, a high incidence of young un-wed mothers and of diminished individual choice to marry.

Considering all, the Supreme Court without proper support allowed for an overly broad application to a right of privacy. Roe v. Wade should be revamped. Additional cause to do so arises with the public acknowledgement in January of 2005 by Norma McCorvey (the one for whom the pseudonym Jane Roe had been assigned) that she had made an error in pursuing the case and that her personal position had since then changed from pro-abortion to pro-life.

Further, it is relevant that the January 7, 2010 edition of the Connecticut Post gave a biographical outline of Connecticut Attorney General Richard Blumenthal. In the context of a recent announcement that Senator Christopher Dodd would not seek a seventh term as United States Senator for the State of Connecticut, Mr. Blumenthal concurrently announced his intention to seek the Democratic Party nomination for that position. What is relevant with the published biographical outline is that from 1974 to 1975, Mr. Blumenthal served as law clerk for Justice Blackman (that while I was serving in Bucaramanga, Colombia as a Peace Corps Volunteer). Go figure!

Based on my understanding of the proper balance of powers between the federal government and the states as was intended and designed by our founding fathers, questions about allowing or limiting abortions are properly limited to the legislatures of our fifty states. With this type of issue, without the artificial provisions that are found in Roe v. Wade, it would be logical to expect that some states might allow for limited abortions while others would prohibit them.

Considering what is discussed above, for those parents who might have some discretion in deciding which states to favor for raising their children, which of the various states would most likely receive the young families? Would they be the states which allow for abortions or those which prohibit them?

Finally, it is my view that President Obama should make a careful review and conclusion as to when a fertilized egg becomes a human being or else his pay grade should be lowered!

Ethan Book Jr.

February 1,2010

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