Posts Tagged ‘errors in Roe vs Wade’

May 21

The Servants of Expediency, a commentary on Roe vs. Wade

The Servants of Expediency, a commentary on Roe vs. Wade.

1/27/1999(Blackmun’s comments from Roe vs. Wade in blue.)

The following is an objective and factual analysis of Roe Vs Wade.  It makes no purchase of religion or morality.

A careful reading of the Decision reveals that Roe contains no empirical evidence of forensic quality supporting the assumptions , assertions and conclusions reached by Blackmun and the Court.  It is entirely a work of supposition.  The intended purpose, as indicated by Blackmun at the end of his career on the bench,  was to emancipate the female from the consequences of her sexual activity.

“It was the step that had to be taken as we go down the road to the full emancipation of women.” Blackmun, April 7, 1994

1. ” 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……. As we have noted, the common-law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable”, that is, potentially able to live outside the mothers womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks….. In short, the unborn have a never been recognized in the law as persons in the whole sense.” (Blackmun; Roe vs. Wade Page 181 Reports). With these words Justice Blackmun, the author of Roe vs. Wade, dismissed his obligation to the establishment of truth, justice, the mandates of the Constitution, and ignored the very standards of evidence set forth by the Court and himself.

2. The Constitution requires three things that are pertinent and fundamental to the disposition of the unborn and the abortion issue. The first is that life must be present in the unborn being in question. When it begins is of no consequence. If this requirement is met, the Constitution then requires that the living being in question be a member of the human species, i.e. a person. If this condition is met,  the Constitution then requires that due process be extended to this individual before its life can be taken. Instead of identifying and dealing with these basic and essential elements Blackmun and the Court embraced two unprovable negative assumptions. First, that life was not present in the unborn and, second, that it did not enjoy the condition of personage.  The following examination of the errors of fact, logic and law contained in Roe vs. Wade will demonstrate that in doing so he foisted a fraud of reason and purpose upon the Court and the American people.

3. Justice Blackmun held that since philosophers, doctors, theologians, and so forth could not agree on when life begins it was not the duty of the Court to do so either. By such a narrow interpretation he digressed from the issue and avoided the duty he was most certainly obligated to perform. Although the Constitution is not concerned with when life begins and makes no reference to such a phenomenon, it is most definitely concerned with the presence of life as it pertains to persons and forbids the taking of such life without due process. It therefore follows that Mr. Blackmun and the Court were bound to make a determination as to the presence or absence of life before issuing license to those who might take it. Reasonable doubt is a well-established principle of law, the very purpose of which is to forestall injustice. Justice Blackmun acknowledged such doubt existed in his own mind when he commented “If this suggestion of person hood is established,…… the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.” (Row vs. Wade pg. 179 Reports ref. to Texas statute on abortion.) (Note: On trial for its life would not the fetus be spared on this comment by the prosecuter alone ?)  The life, humanness and personage of the unborn could have been determined quite readily by applying careful thought to simple prima facie evidence that was within immediate and easy reach of the Court.  Instead, Justice Blackmun and the Court required the American people to accept their notion as law that the mechanism responsible for propagtion of life can do so in the absence of life.  No effort was made to describe or clarify the validity of such theory.

4. The history of human experience, which predates ancient attitudes, the thinking of the Stoics and philosophers, and all common and statutory law, teaches consistently that the living, by cessation of life, become non-living, and that the non-living cannot become the living. We can deduce from these observations two essential truths.

5. First, life is either present or it is not. (This is a tautology, a statement of inherent truth.)

6. Second, no specie of life ever arises spontaneously.  Reproduction is required and may be either sexual or asexual.

7. If these statements are true, it then follows that life must be present from the moment of conception until death occurs. Stated another way, if life is not present at conception it can never be present at any point subsequent to conception. This is so because life cannot arise spontaneously. Therefore life begets only life.   Based on these self-evident truths, this conclusion is inescapable. When life begins is irrelevant. It is the presence of life that is essential. It is not necessary to resort to any unique or particular theory of life, only readily available fact and common linear logic.

“Therefore life begets only life.”

8. Further, the reproduction of any species of thing, living or non-living, requires the existence of a template which determines its species. That template can be a die, a mold, a design set down graphically or a set of instructions, etc.  Among the living that template is genetics. Among the living species is a property of genetics and nothing else. If the life in question is of human origin and of human destiny, then it can only be regarded as human and therefore a member of a species. If it is a member of a species then its being constitutes both an entity of life, as opposed to a differentiated or undifferentiated tissue of life, and, if human, a person.

9. Finally, if the living entity in question is a person it is entitled to the protection of the Fourteenth Amendment and due process before its life can be taken. That such simple and valid syllogisms were easily discoverable by the Court and yet not considered is most curious. Were they not self-evident? Were they not forensic? If not, why not?   The Court, which did not confine itself to what meager legal precedent was available to justify its course but instead went to the thinking of the AMA, the ancient thinkers and healers and other extra judicial authorities and found no compelling case for recognizing the possibility of unborn human life, yet could not go here.  The empirical was simply ignored.

10. Fundamental to the errors of logic in Roe vs. Wade is the failure of its authors to understand at even a rudimentary level the nature of the phenomenon with which they were dealing but, also, an inadequate command of the language with which they reasoned. For example, they equated viability with the onset of life: ” With respect to the State’s important and legitimate interest in potential life, the compelling point is viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.” (pg. 183 Reports) It should be noted that the Constitution does not protect life according to how “meaningful” it is or for that matter how ‘viable’ it is. The only qualification is personage. The decision’s authors further declare: “The protection of the fetus when it has acquired life is a legitimate concern of the State…… When life is present is a question we do not try to resolve. While basically a question for medical experts, as stated by Mr. Justice Clark, it is of course, caught up in matters of religion and morality.” This seems a peculiar position for a court of law that “does not deal in speculation.” but rather “deals in reality, not obscurity,…. the known rather than the unknown.” (pg. 191 and 192 Reports.) If the cloak of mystery concealing the life phenomenon was so impenetrable or ‘obscure’ to the Court, did not this standard require the Court to either define and resolve the issue factually, thus removing doubt, or forgo the issue altogether?  Does obscurity permit proceeding on the basis of unsupportable and speculative assumptions and potentially fallacious conclusions?

11. The word viable is rooted in the Latin vitameaning life. According to Webster’s dictionary, it means “likely to live,” or “possessing the ability to grow and develop; as viable spores, seeds or eggs etc.” According to Stedman’s Medical Dictionary, it means “capable of living; denoting a fetus sufficiently developed to live outside of the womb.” In other words, the word viable denotes potential,— to live, to grow, to develop, rather than the actual presence of the life process which is expressed by the word vital or vitality. (E.g. Medical attendants ascertain ‘vital signs’ not ‘viability’ signs to determine the presence of life.)

12. According to Justice Douglas, quoting Justice Clark, the law does not recognize potential and therefore viability, only the actual presence of life, or vitality: To say that life is present at conception is to give recognition to the potential, rather than the actual.” (pg. 191 Reports) The Constitution does not protect viability, it protects vitality, or the actual presence of unqualified life as it pertains to persons. Nor does any work of science or medicine equate viability with the beginning or onset of life. At best, viability merely indicates the presence of life. If a being has the potential to grow and develop beyond the womb it must first be alive or possess vitality. Yet here the Court chose to use the medical connotation of a term denoting potential in its narrow application to the postpartum fetus, ignoring its broader overall meaning. This usage in no way precludes life or vitality, i.e. the “actual”,within the womb. Indeed, the growth and development of the embryo or fetus within the womb, before the 24th week of gestation, qualifies it by definition as viable and therefore vital or alive. To accept the idea of non-viability during fetal development requires the presumption of a period of gestation that can only be referred to as pre-viable or pre-living. Such a concept is nowhere defined, entertained, or described in any dictionary, encyclopedia, or credible work of science or medicine or law. Furthermore, life, or vitality, may be present in the absence of viability. For example, an individual in the final stages of a terminal disease could be said to have little or no remaining viability or potential to grow or develop or continue on, yet life, or vitality, still remains and is protected by due process. The decision of the Court to embrace a speculative and arbitrary notion regarding viability or viable potential over the knowable and certain condition of vitality contradicts the standards of evidence established by the Court.

13. In considering the matter of personage as it applies to the unborn, Blackmun again demonstrated his intellectual incapacity to embrace this issue. Apparently he felt he could pursue a line of logic holding that, in the absence of personage, the presence of life becomes moot. According to Blackmun: “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’…. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates with the any assurance that it has any possible prenatal application….. 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. This is in accord with the results reached in those few cases where the issue has been squarely presented….. In short, the unborn have never been recognized in the law as persons in the whole sense.” (pg. 182 Reports)(Note: During much of the 19th century blacks and Indians were often not “recognized in the law as persons in  the whole sense.”) Blackmun’s statements beg the question: Does the law define our common language or does our common language give meaning to the law? The purpose of the Constitution is not to define personage but to contain tyranny. However, it might be noted that the Constitution requires prior personage as a condition of bestowing citizenship. Persons born, persons naturalized. Not a cat born, or a dog, but a person born. Personage is the prerequisite, not the achievement. Where in law is it established that birth bestows personage or membership in the human race?  The birth process merely reveals the “actual” to the eye.  It does not determine what is or is not.

14. That these things point to an inadequacy of previous law and logic, not to the presence or absence of life or personage of the unborn, does not seem to occur to Blackmun. The law does not specifically include or preclude the life or personage of the unborn.  However the law is for the living and the only respondents are human.  Therefore the initial and fundamental assumption of law is that life is present and personage presumed.  It is the absence of life that must be certified. This being the case, should not the Court have made such a determination before proceeding on the assumption that the unborn was not a person or that life was not present? Was it reasonable to grant sanction to those who might take such life without some logical and valid test for its absence or presence? By analogy would it be reasonable for the Food and Drug Administration to issue approval for a new drug without first testing for its potential lethality? Does ignorance or failure of reason or intellectual inconvenience discharge discovery of truth?

15. Let us expound on the obvious for moment. Among the living, what is a person? A human being, of course. This is what it says in any dictionary. Blackmun, quoting Clark, acknowledges this: “No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus. This would not be the case if the fetus constituted human life.” (pg. 191 Reports) Indeed, a human is a person and a person is a human. (The legally established corporate entity not withstanding.) The point is this. If the Constitution protects persons, it must also protect humans. Therefore, if the life in question is human, it qualifies for protection. The matter of personage is not complicated. There is no great mystery here. To reiterate, the reproduction of anything implies—indeed, requires—the existence of a template. Among the living, that template is genetics. Humanness and personage are not acquired, but are dictated by genetic instruction. The unborn human being is simply a person at a very early stage of development. The Constitution does not qualify or withhold its protection for this cause.

16. Another area of Roe in which the authors demonstrated a lack of faculty pertains to formation as a requirement for the establishment of life. Justice Douglas quoting Justice Clark :“The unfertilized egg has life, and if fertilized, it takes on human proportions…. When sperm meets egg life may eventually form, but quite often it does not….The phenomenon of life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be a homicide…. (Pg. 191 Reports)  and “it equates the value of embryonic life immediately after conception with the worth of life immediately before birth” thus implying that stage of development bestows a basis for discrimination, i.e. that the life of a child may not be worth that of an adult and, unwittingly, that life is indeed present immediately beyond the point of conception yet not worthy of protection. This line of logic seems fundamentally flawed.  It can only be regarded as an unsupported logical fallacy.   Granted, the embryo, before attachment to the uterine wall and the onset of gestation can have no standing in law, but Douglas apparently did not deem this distinction necessary for the sake of his argument.

17. Form does not reliably indicate the presence or absence of life. Its use as such is again in contradiction with the standard of the Court regarding “speculation”. (Pg. 191 Reports) The Court makes this suggestion, and then fails to specify or even comment on what amount of “formation” is necessary before life is established. Nor does the court equate formation with viability or set forth any clear statement of evidence as to why formation should be a criterion in the first place.  Since life is either present or it is not, since its onset cannot be spontaneous, since the Court deals in the “known” not the “unknown”, since “the compelling point is viability” which the Court places at “about” “24” to “28” weeks, what knowable and non-speculative standard does the Court suggest?  What sort of “Court speak” has been created here??

18. ‘Formation’ refers to the process by which ‘form’ is the consequence. In nature numerous things may be observed over time to take form. Crystals form, canyons form, clouds form, and so forth. Each of these formations is a consequence of the process that formed them, such as crystallization, erosion, or condensation. Life also is a function of process. Whatever form it takes is incidental to, and a consequence of, that process. Do not the dead, prior to decay, have just as much form as the living? It is the process that is of the essence, not the physical being. Nothing occurs in the absence of process. The process is life.

Note: If nothing happens in the absence of process then the question must be asked: If as the Court claims life is not present from the point of conception until the onset of “viability”  then what process, other than the life process is it?  What mechanism is responsible for taking the fertilized ovum from conception to the onset of life in “about” 24 to 28 weeks?? What does the Court suggest??  Where is the empirical evidence??

19. At issue is not when life begins, but rather when does the host parent become obligated to sustain life once it is present? The answer here can be discerned by an allegory.

20. Two mountain climbers are about to ascend a mountain. The more experienced one begins the climb to a ledge and stops there to rest. The second climber throws up his rope. The first climber accepts the rope and makes it secure. The second climber begins to make his ascent. The first climber, though not in any danger, and for reasons of his own, suddenly changes his mind, reaches down and cuts the rope, causing the second climber to fall to his death. Needless to say, the first climber has perpetrated a grave injustice upon the second.

21. Suppose, however, the first climber had not accepted the rope of the second climber and secured it. Certainly, the second climber would have taken another path, and, as in the case of the (unattached) fertilized ovum, it also would lead to  death—but not at the expense of justice. In other words, the obligation to sustain the life begun by the host parent does not actually begin until her body has accepted the attachment of the embryo. Simply and generally stated, the law permits us to allow death to occur, but not cause death to occur. The law, as Blackmun related, deals with “the known rather than the unknown” and therefore the knowable rather than the un-knowable.

22. The essential argument of Roe vs. Wade can be reduced to the right of the host parent to continue to exercise authority over her own body at the expense of the individual who resides within her, which the Court chooses to recognize, vs. the right of that individual to personage and protection of the law, which the Court chooses not to recognize. In doing so, the Court has decided to ignore the fact that the host parent, acting on her own authority, has already engaged in an act, the very purpose and consequence of which is procreation, and having done so, must by all reasonable logic inherit responsibility for that consequence. The first requirement of freedom is that the individual must possess authority over him or her self. Inherent in all authority is the responsibility for the consequences of the exercise of that authority. Can the sole purpose of abortion be the absolution of inherent obligations? For the sake of what expediency?

23. Yet the protection of the law as it extends to the unborn individual may not be absolute. The rights of the fetus must be protected within the framework of the Constitution but only as the demands of justice, liberty, responsibility, and the unwritten laws of nature may require. For example, a female impregnated before the legal age of consent may not be considered to have acted on her own authority and, thus, might be excused from her circumstance just as the victim of a forceful rape. Such circumstances pose a gray area were one injustice must be weighed against another. Here a legislative body may find just cause to permit the premeditated homicide of a fetus so long as it is extended due process. If the fetus was not conceived with the cooperation (and therefore by the consensual authority) of the host parent, then the host might petition the court or an established judicial authority for the expedited  removal of this occupant. Any law which imposes an injustice as a consequence of injustice must not withstand in a free society.

24. In nature abortion may occur spontaneously. Fetus’ which are developing improperly or incompletely are very often expelled by the host as a conservative efficiency of the reproductive mechanism and to protect the species at-large from further harm. In nature only the individuals delivered fully intact and competent to cope with their environment survive. Man is the only species which has the option to intervene between the incompetent individual and its environment to mitigate the needs and demands of each. Freedom, however, is the domain of the competent. To the degree that others must bear responsibility for the incompetent, individual authority is forfeited. This imposes an injustice on all parties. Freedom must therefore be weighed against mercy and a threshold of reasonable expectation established.

25. In the preamble of the decision, Justice Blackmun stated: “Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection.” At the end of his career, when asked about his watershed decision, Blackmun replied “It was the step that had to be taken as we go down the road to the full emancipation of women.”(Quote attributed 4/7/1994 Chicago Tribune.) What competent prosecutor would empanel a juror who expressed such a sentiment? Clearly, his words betrayed a mind-set and an agenda in conflict with an impartial court. Was this decision a misguided attempt to provide a pragmatic solution to a pressing social, political or economic problem?   Was the sole purpose of the Courts decision to “emancipate” the female from the consequences of her sexual activity? Was it, as Justice Rehnquist suggested, an act of judicial legislation rather than jurisprudence? This is what the evidence indicates.

26. The reasons for the existence or absence of law are sometimes silent or obscure. Law, however, too often becomes the servant of expediency. Whenever justice is qualified in social, economic, political, or whatever terms it usually ceases to be justice and becomes expediency. True justice is evident of itself and needs no qualification. When a host parent, without compelling cause, exercises her authority at the convenient expense of the individual residing within her, she perpetrates an injustice. The judicial sanction of injustice is tyranny. No social tapestry of a free people can tolerate a single thread of tyranny. The same loom that weaves in one thread of expedient injustice can weave in another. The Supreme Court must move to redress its error.

Bibliography: U. S. Supreme Court Reports

Blackmun’s quote: “It was the step—” from Chicago Tribune article by Glen Elsasser, 4/7/1994.

Copyright 1989-1998-1999 6 pages  This is an entirely original work by the author.

James Kipling ****

3940 words, 26 paragraphs

All rights reserved. Do not reproduce without permission.

Modified 9/18/99 and 1/14/2000

Please note that no unique theory of life was offered within the preceding argument.  Every effort was made to maintain a secular thesis founded on the empirical and forensic.  Questions and comments formulated within the parameters of respectful reason are welcome.  All else will be ignored and removed.

Truth is patient and waits in ambush for both the lie and the liar. theBushwhacker.  1986

When the bulwarks of principle are battered down the floodgates of expediency are thrown open.  Over their remains will march the agents of tyranny. tbeBushwhacker  2006