By Charles D. Dern,
Pewsitter.com
Justice Harry Blackmun who authored the majority opinion in Roe vs. Wade
January 26, 2009 - As a presidential candidate, Barack Obama made his position on abortion very clear. During his campaign, he stated that he would sign the Freedom of Choice Act and that he opposed restrictions on Partial Birth Abortions. Now as President, Obama used the 36th anniversary of the Supreme Court’s Roe v. Wade decision to reiterate his quite extreme position. Obama made several statements about "ensuring that our daughters have the same rights and opportunities as our sons...." However, his key statement appears to demonstrate an utter misunderstanding of the legal aspects of abortion, was that government "should not intrude on our most private family matters." An Associated Press subheader put it as "the ruling legalizing abortion represented a broader principle that government should not intrude on private family matters."
Obama seemingly fails to understand three things about the "right to privacy." First, in that as far as it has been applied to abortion and contraception (Griswold vs. Connecticut); it is not a principle about "family matters." It is a principle purely about individual choice. Under Roe, no one else in the "family" has any say about the abortion decision. If the woman is not married to the father of the baby, he is not "family" anyway. Second, the right to privacy is not absolute. Third and most important, that under Roe, the "right to privacy" is secondary to two considerations about the unborn child: whether or not the unborn child is a "person," or at least "potential life." For these last two, we can turn to Roe itself.
The "Right to Privacy"
The majority opinion of Roe admits that, "The Constitution does explicitly mention any right of privacy." Majority author Harry Blackmun cites various past court decisions which recognize personal rights that are "fundamental" or "implicit in the concept of ordered liberty." Since these private rights had been found to have extension to areas such as marriage, procreation, contraception, family relationships and child rearing, the justice concludes that the right to privacy is "broad enough to encompass a woman’s decision whether or not to terminate her pregnancy."
Importantly, Blackmun admits, that the right to privacy is not absolute. The appellants (Roe) had argued that the woman had a fundamental right to terminate her pregnancy at any time in any way. However, the opinion states that, "A State may properly assert important interests in safeguarding health, in maintaining medical standards and in protecting potential life." Further, "It is not clear to us...that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right to privacy...." This statement is significant because many abortion supporters argue that their right is based in an absolute right over one’s body, which is not true according to Roe.
But even the right to an abortion seems to be a foregone conclusion for Blackmun, he still must examine whether or not the unborn are "persons" in which case they have their own rights, or that they are not "potential human life" in which case the State has a right to intervene.
Are the unborn "persons?"
"Person" as a legal term means that someone or something has rights under the Constitution. The appellee (Wade) argued that the fetus is a person as stated within the Fourteenth Amendment by citing what Justice Blackmun calls the "well known facts of fetal development." Even appellant (Roe) conceded during reargument that, if this were the case, the unborn would indeed be guaranteed the right to life. This is another very important point. The "(non-) personhood" of the unborn is more fundamental to Roe than the right to privacy because declaring the unborn "persons" would trump all other considerations.
Blackmun admits that "The Constitution does not define ‘person’ in so many words," and that the Constitution does not rule out the possibility that the unborn are not "persons." Nevertheless, he concludes that the unborn are not "persons." Blackmun supports his opinion by citing that when the Fourteenth Amendment was enacted, it did not invalidate any existing pro-abortion laws. Therefore, the unborn must not have historically been considered "persons."
The problem with Blackmun’s conclusion is that it has its roots in an Enlightenment view of the person. This view narrowly identifies the person solely with cognitive abilities and moral responsibility. Thus, a mentally handicapped adult or a young child may not be a person. On the other hand, courts have ruled that a corporation, a university or a municipality are persons under the law because they are self-directing entities. Paradoxically, something does not have to be "alive" to have rights, that is, to be a person, such as a corporation. But the Enlightenment concept of person is fraught with difficulties. At what point does a child become a person? When does a person suffering dementia become a non-person? Indeed, some ethicists following this logic have argued for legal infanticide. (Thus what many refer to as the slippery slope of Roe.)
"Potential Life" and "Viability"
In examining the question of the "right to life," Blackmun begins by admitting that the situation of pregnancy and its termination is "inherently different from marital intimacy..." or any of the other rights which he had previously noted as falling under the "right to privacy," because, as he already admitted, the state does have an interest in protecting potential human life. Yet despite having stated this several times, Blackmun somehow writes, "We need not resolve the difficult question of when life begins." He justifies this absurd statement by claiming that if those trained in medicine, philosophy, and theology cannot arrive at a consensus, then the "judiciary is not in a position to speculate as to the answer." He goes on to cite that various religions disagree about when life begins. One ought to note, however, that Blackmun held to a strict separation of church and state and it should have been inconsequential to him just what any religion or philosophical system believes.
Moreover, "Potential Life" is of itself a ludicrous concept in this case as well. No bioethicist today denies that human life is a continuum that can be traced back to that beginning of all life on earth. Certainly, a fertilized ovum is alive when compared to an inanimate object such as a rock. Even a person minimally schooled in biology can logically understand the necessity of a continuum human development in the womb. Life does not begin at fertilization; rather it is passed on at fertilization.
At best, one could use "potential life" to describe a mixture of all the chemicals required to make a living cell. The chemicals themselves are not alive but could be so "potentially" in the right combination and with some sort of spark of energy (the theory of spontaneous generation). But how this happened for the first time on Earth remains a great puzzle to those who do not allow for at least an Intelligent Designer. For all our technology, science still cannot gather the requisite chemicals and create life. Therefore, nothing is "potentially alive." Something either is alive or it is not.
The majority opinion also notes that law has historically guarded the unborn only insofar as it has served the interests of the parents or guardians. As for the opinion of the medical community, Blackmun states that some physicians may believe life begins at conception while others believe life begins at live birth. He prefers a third opinion that life begins at "viability," the point at which the unborn child could live outside the womb, although he offers no substantial argument for his choice.
The problem with viability is that it is a relative term that is irrelevant to the characterization of life at any level. By definition, viability means that an organism can live in a certain environment. It does not measure anything inherent in the organism. All organisms can survive in certain environments and not in others. A new born child is "non-viable" if left to herself. She cannot fend for herself. She cannot survive in our environment by herself. One might even extend this idea to some elderly.
Moreover, in the case of the unborn, "viability" becomes a mere measure of medical technology’s ability to keep pre-mature babies alive. In 1973, when Roe was delivered, unborn children were "viable" after approximately 26 weeks gestation. By 1989, unborn children were "viable" even before 24 weeks gestation. It is given that unborn children in general do not develop any more rapidly than 16 years ago; therefore, it is the technology which has changed. The law, however, has not. It is legally possible (and undoubtedly has happened) to sustain the life of a 24 week old baby in one room while aborting one the next room. This has led Justice Sandra O’Connor to remark that, "Roe is on a collision course with itself."
Finally, viability is a grey area. Not all babies are viable at the exact same point. It would have been more logical for Blackmun to have chosen birth as the point of "life" since birth is a discrete, definite event of which there can be no doubt that it has occurred.
There is only one other definite event in the life of the unborn, fertilization. It is a fact that from the moment of fertilization, all attributes of the new person are set: eye color, sex, hair etc. In other words, the fertilized egg contains a potential human adult and will grow into a human adult by its own accord if given the nutrition and proper environment that all life, even plants, require. Recall that Blackmun himself stated, "logically...as long as potential life is involved, the state may assert interests beyond the protection of the mother." Clearly, on Justice Blackmun’s own terms, Roe v. Wade could be overturned on the principle that from the moment of fertilization, there is not merely potential, but actual human life.
Obama, Blackmun and Roe Regardless of myriad factual, logical, legal and scientific issues, Harry Blackmun still concluded that the fetus is not a "person," and since "potential life" does not begin until viability, abortion must therefore be an absolute right up to the point of viability, only to be regulated during the second trimester for the sake of maternal health. However, the broad definition of health from Roe’s companion decision, Doe vs. Bolton makes abortion legal to the day of birth.
Obama continues Roe’s denial of the obvious. At what was essentially the first presidential debate with John McCain last August, Obama was asked by Pastor Rick Warren (who later gave the invocation at Obama’s inauguration) when he thought life began. Obama evasively answered "that’s way above my pay scale." But the secular press continually reminds us that Obama is extremely intelligent. If Obama does in fact understand Roe, he would realize that justifying abortion on Roe’s terms is a losing argument and thus the logical thing to do is to divert public attention away from the facts as much as possible.
Charles D. Dern, Ph.D., is an Adjunct Instructor of Moral Theology and Medical Ethics at various area Catholic institutions of higher learning. 
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