“Great cases like hard cases make bad law.”   Justice Holmes, 1904

Roe v. Wade (1973) is such a hard case. The following is intended to help clarify some of the issues involved:

1. WHAT DOES WESTERN HISTORY TELL US ABOUT THE ISSUE?

Common Law crimes did not recognize the killing of an unborn child as a homicide as it was thought that an unborn child has no existence separate from the mother. The holding in Roe that a fetus is not a person for purposes of the 14^th Amendment of the US Constitution is consistent with this thinking. The significance of holding that a fetus is not a person means that an unborn child has no legally recognized Constitutional rights to life and liberty applied to states through the Due Process Clause of the 14^th Amendment.

“[N]or 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.”

So, if an unborn child has no Constitutionally recognized rights the child would have no “cause of action” in a court of law to sue its mother for endangering its life in the womb. One can imagine the lawsuits regarding drug addiction, smoking, and other dangerous behaviors by pregnant women and girls brought to court by children, now born, who suffered in the womb.

2. WHAT RULE OF LAW GOVERNS ABORTION?

Constitutional Law and Common Law (judicial decisions not at the Supreme Court level including English common law) are both parts of what we call Positive Law. Positive Law, in addition to constitutions and common law, includes statutes passed by legislative bodies as well as administrative rules emerging from these statutes.

For instance, the leader of the Senate of the United States recently supported a federal statute that would allow abortion, if desired by the mother, at any time prior to birth. It failed to pass Congress, but some states have such statutes.

Positive Law, though, is not the only Rule of Law in America. Natural Law as represented by the Declaration of Independence says that “[We are] endowed by [our] Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

While Natural Law is not recognized as creating a “cause of action” in a court, it remains part of the fundamental value system of the nation. These unalienable rights cannot be taken away by any statute or court – even the Supreme Court of the United States. The right to life, then, under Natural Law comes from God, not any government.

It is Moral Law, however, the nation’s highest law, that governs the issue of abortion. What is right and what is wrong, morally, relative to an unborn child? Relative to the mother? In this venue, the answer to competing interests and rights will be found.

3. HOW DO WE KNOW WHEN A FETUS BECOMES A HUMAN BEING?

It was not until 1876 that scientists discovered that fertilization is due to the fusion of an ovum and sperm. We now know that within 24 hours this transforms into a zygote and within a week takes oxygen from its mother’s blood. Within two weeks twins may form; within 6-8 weeks the brain stem develops; and within twenty-two weeks cerebral function forms. Science will continue to provide us with more knowledge over time. Science alone, however, does not answer the question.

Theology considers at what point the soul exists and therefore a human being is formed. Philosophy considers the wisdom of fine intellectual distinctions in conjunction with science, theology, and ethics regarding this question. These areas of scholarship and inquiry are critical in determining proper parameters regarding when a human being exists.

4. WHAT ABOUT THE RIGHTS OF THE MOTHER?

A mother, living outside the womb, has a right to life. Scientifically, however, abortion to save the life of the mother does not really exist. Almost all physicians, including those performing abortions, agree that women and girls with underlying medical conditions need not abort to save their lives. The child can be removed from the womb, even in the most difficult medical situations, and might live.

The issue today revolves around the “health” of the mother not the “life” of the mother. This is the carve-out that now allows abortion until the time of birth. If, by “health”, one means “I just don’t want it” or “I can’t afford it” or “I only want it if it is a boy” then the killing of the unborn is disconnected from Moral Law. The mother and the fetus may have co-existing rights.

5. WHAT IS THE BOTTOM LINE REGARDING ABORTION?

The fact is that abortion involves two or more lives, the legitimate interests of government in protecting those lives, and the liberty interests of both the unborn child and its mother and father. Abortion comes under the rubric of Moral Law and medical ethics translated into Positive Law constitutions and statutes.

The Sovereign – We the People – not the Supreme Court, will ultimately have to decide how to marry the practical with the moral, scientific, and ethical to determine the parameters of each. Roe v. Wade is not really the issue. It was a hard case but bad law, as Justice Holmes tells us. Science has now rendered it hopelessly outdated and legal scholars have ridiculed it mercilessly.

If the leaked current Opinion regarding Roe turns out to be the ultimate decision of the Supreme Court, the issue will be decided in the states through state statutes, until the right mix is found and accepted by the People. This is the right venue for the issue of abortion since it lies within the consent of the governed through elected, not appointed, representatives.

When bad law comes from the Supreme Court of the United States lawlessness often follows. “A Summer of Rage” over a case that was outside the Court’s jurisdiction in the first place is damaging to our civil order. Perhaps study, thoughtfulness, and patience are better answers to this difficult age-old challenge of humanity.