Aug 21

the Road Kill and Roe v Wade

 

the Road Kill                                                                                         
By theBushwhacker ©1998

I was down south awhile back, visiting some friends, and happened by the local drug store where a wise old Judge, long since retired from the bench, and the daughter of the store owner, a law student recently returned from an Eastern University, were engaged in conversation regarding the rise of divergent views on abortion.  The young woman, somewhat full of herself and her new found knowledge of things worldly and lawyerly, was taken somewhat aback when she learned that the grizzled old jurist held that an unborn fetus was entitled to the same protection of the law as one recently delivered of the womb.  The conversation, as nearly as I can recall, went something like this:

Judge: “I believe Justice Blackmun erred numerous times in his assumptions when he formulated his position in Row vs. Wade.” he stated flatly.  “For instance, at the outset he presumed that since doctors, theologians, philosophers and so forth couldn’t agree as to when life begins it wasn’t the Court’s job to do so either.  On this point he was quite right, of course.”

Young woman: “Of course, so where did he err?”

Judge: “The Constitution does not deal with the beginning of life, only the presence of life as it pertains to persons.  It merely forbids the taking of the life of a person without due process.  When life begins is irrelevant.  Justice Blackmun, in formulating his position on Roe vs Wade made two unprovable assumptions.  First, that life was not present in the unborn.  Second, that the unborn was not a member of the human species.  On the basis of these errors and ignoring relevant and contradicting evidence that was within immediate and easy reach of the Court he continued on to create law.

Young woman:  “But that still doesn’t change anything.”  she insisted.  “Justice Blackmun, quoting Justice Clark, said that life isn’t present until it is formed and since it isn’t present it cannot be destroyed.

The old Judge took a big draw on his cigar, exhaled slowly, smiled a slight wry smile and asked, “Do you drive a car?”

Young woman: “Well of course!”

Judge: “Ever hit an animal?”

Young woman:  “Yes. Once. A dog.”

Judge: “Kill it?”

Young woman:  “Yes.”

Judge: “You sure?”

Young woman:  “Yes. I got out and checked.  It was very sad.  Somebody’s pet, I think.  But it was quite dead.”

Judge: “It didn’t get up and later and run away?”

Young woman:  Somewhat miffed at him pressing a painful memory she replied….”No, of course not.  It was quite dead.  I’m sure of it. What has this got to do with anything?”

Judge: “Just this.  We know, most of us anyway, that a living thing can die and become a nonliving thing, but a nonliving thing cannot become alive.”

Young woman: “So what?”

Judge: “Well, think about that for a minute.  If this is true, and were reasonably certain it is, then it must also be true that life is either present or it’s not and that life does not arise spontaneously.”

Young woman: “So?”

Judge: “Well, if these things are true, then life must be present from conception until death occurs.  The conclusion is inescapable, isn’t it?”

Young woman: Silence.

Judge: “Stated another way, if life is not present at conception, it can never be present at any point subsequent to conception, because it cannot arise spontaneously, or by itself.  Correct?”

The curmudgeon took another long puff on his cigar and studied her closely, as if watching her mind struggle with this idea.

Young woman:  “But even if it is alive it’s not a person until it is born.  It’s just—a blob of tissue.  The Constitution only protects persons.”

Judge: “ All life is a product of a reproductive process.  The reproduction of anything, the glass you’re drinking from, the car you drive, the chair your sitting on, requires the existence of some sort of template or plan, mold, set of instructions or whatever to determine its specie.  The coin on this table for instance required a constant die to achieve precise reproduction. Among the living species is a property of genetics and nothing else.  Among the living this is the template of life.  If the living being or blob of tissue in question is of human origin and human destiny it can only be regarded as human, is that not so?”

Young woman:  Long pause. “I’m thinking.”

Judge: “Then think on this too.  If the unborn living being is human, then it is a member of a species and therefore an entity of life and a complete being as opposed to a mere tissue of life such as a “blob” as you put it.  The Constitution does not withhold or qualify its protection according to stage of life or development.  If it does, you will need to instruct me as to where that might be found.”

While she was still trying to catch her intellectual breath the old gentleman hit her with another one……”Another test that Blackmun could have used to determine what he was dealing with is the mandate of life.”

Young woman: “The what?”

Judge: “The mandate of life.  Think back.  You must have taken a biology course or two or at least picked up on why all the boys were paying you so much attention.”

Young woman: Embarrassed fidget.

Judge: “Sure…..you know what I’m talking about now don’t you?  Nature only requires one thing of each member of each species that inhabit the planet……that’s all, nothing else.”

Young woman:  “Okay.  So what’s the point?” recovering from her momentary embarrassment.

Judge: “Just this.  Only a member of a species can participate in fulfilling this mandate.”

Young woman: “So?”

Judge: “So what did we just say is one of the definitions of an entity?  What qualifies a living thing as a complete being as opposed to blob of tissue?”

Young woman: Blank, questioning stare.

Judge: “It must be a member of a species, of course.  Any member of any species is regarded as an entity of life.”   Long pause—–”Then the question has to be asked, does this unborn living thing or being, if left alone, have the potential to engage in reproduction or to perpetuate itself?  If it does, then it must be regarded as an entity of life rather than a tissue of life, such as a skin cell.  I think we can reasonably assume that it has such potential and destiny, don’t you?”

Young woman: “But what about the sperm and the ovum?  Justice Blackmun said they have life.  Are they not of human origin and human destiny just the same as the fertilized egg?”

Judge: “The sperm and the ovum have no viability of themselves, that is to say, they cannot, of themselves, grow and develop beyond what they are.  Since the sperm requires the ovum and the ovum requires the sperm we can deduce that neither is complete without the other and therefore do not constitute entities.  The hosts from which they come require nothing.  Their individuality is complete.  Their mandate is to create another individual.  The mandate of the sperm and the ovum is to become another individual.”

Young woman: Sensing the direction things were going….”But I’m still not convinced that the fetus doesn’t need to undergo a certain amount of development, or as Blackmun put it, formation, before we can regard it as being alive, much less a person.  I mean after all, it’s not even recognizable during the first few weeks of development.”

Judge: “Think about it again.  We know……those of us that pay attention to things at least….that in nature many things may be observed to take form.   Crystals form, canyons form, stalactites form and so on.  But each of these formations is the result of a process, such as erosion, crystallization, mineralization or evaporation and so on.  Nothing happens in the absence of process. Whatever form it takes is incidental to and a consequence of that process. So too is life a process.”

He continued, “Formation is not, by itself, an adequate indication of the presence or absence of life.  Didn’t the dog you killed have just as much form after death as when it was alive?  You could still tell it was a dog, couldn’t you?  But how did you know it was dead?  Wasn’t it because your senses, along with your life experience told you that its life processes had most likely ceased?  Did you need to have knowledge of when its life began or when it was conceived or became viable to determine these things?”

“One more thing.  You referred to “development” during the first few weeks of “formation.” Yet Blackmun precludes the presence of life during this period of time.  What process was it, other than the life process, do you think he was referring to?  Was “formation” taking place in the absence of the life process?  Can you explain the validity of this conundrum?  Let me know when you have achieved this.”

The young woman was silent, nodding, thinking.  The Judge responded with a long thoughtful smoked filled silence of his own.

Finally.  “But what about viability?” she asked.

“What about it?” the Judge replied.

Young woman: “Justice Blackmun said that the fetus could only be considered viable, and therefore alive, when it could survive outside the womb on its own, and that this doesn’t occur until about the 24th to 48th week of gestation.”

Judge: “HA!.  He also said the Court dealt in the known rather than the unknown and not at all in speculation.  Yet is position on viability is rife with speculation, isn’t it?” It’s
like saying to the fetus if you can eat with a fork we’ll let you live, if you have to suck through a straw we’ll let you die.”

Young woman: “Huh?”

Judge: “Never mind. Here again ol’ Blackmun demonstrated his inadequacy to deal with the task at hand.  What is viability? What does it mean?”

Young woman: “Well,” she replied.  “As he used it…it meant the ability to live…..to continue life by one’s self.”

Judge: “The term viability is from the Latin vita, which means to have life.  In common usage it refers to the ability of an entity to grow and develop, that is, to fulfill its potential via the life process.  This means that even a seed that lies dormant for months or years is still considered viable so long as it retains this potential.  Blackmun chose to employ the far narrower and circumspect medical usage of the term as it applies to the post partum child ignoring the fact that such usage in no way precluded the viability of the pre-partum child.  The ability of the pre-partum fetus to grow and develop within the womb qualifies it, by definition, as viable and therefor having vitality or life and therefore alive.”
“Blackmun also failed to understand that the presence of viability always indicates presence of life, but the presence of life does not necessarily indicate viability.  An old man, dying of disease, might be considered to have no further viability.  His life is near its end.  But until his life processes cease life is still present and cannot be denied except by due process of law.  The Constitution protects and recognizes life or vitality, not viability.  Viability denotes potential, not the actual.  Blackmun contradicted himself by using this term to set his standard of law.  The premature infant may be very much alive, but its potential to grow and develop, that is, its viability, has been drastically compromised by circumstance.  How can it be said that since it has no viability that it is not alive when the evidence of our experience and our senses dictate otherwise? How then do we apply this standard of viability as put forth by Blackmun?  If we assist such an infant and it lives do we say that it is viable?  Of course.  If we assist it and it dies do we say it was not viable, or do we say that it was never alive in the first place?  That is the dilemma Blackmun has posed for us as a result of his contradiction.   The ability to live, that is viability, denotes potential.  Life or vitality denotes the actual, the presence of the life process.  Again, the Constitution protects only the known, life and its presence, not viability or potential.  When the unborn achieves or acquires such in ‘about 24 to 28 weeks’ following conception as specified by the Court is an entirely speculative and unknowable condition.  It is the processes of vitality measured by vital signs that determine presence of the life process, not its potential.  These are present and ongoing from a successful conception.”

“Lastly but certainly not of the least, if we accept Blackmun’s formula then we also must accept the notion that there is a period of gestation that can only be described as pre-living or pre-viable.  You find such an idea defined or described in any credible work of science or medicine and I’ll buy you a new car.”

Young woman: Looking for an argument, a flaw in the old jurist’s position responded: “According to Blackmun the Constitution protects only persons and nowhere in the Constitution is the unborn identified as a person.”

Judge: “This is bogus.  For one thing the Constitution doesn’t identify any being, even a human one as a person.  Personage is understood.  It is a given, a property of the human condition.  The initial and fundamental presumption of all law is that life is present and enjoys the condition of personage.  This is so because the law is only for the living and the only respondents are persons.  Thus the presumption.  The purpose of the Constitution is not to define personage but to contain tyranny.  It could more easily be said that the Fourteenth Amendment requires prior personage in regards to naturalization or birth when qualifying citizenship. Birth only reveals the actual to the eye. We have to ask, does the law give meaning to the common language or does our common language give meaning to the law?

Young woman:  “But you still haven’t proven that the unborn is a person.”

Judge:  “Oh, but I did my dear.  You just weren’t listening.”

Young woman: “How so?”

Judge: “We proved that life is present at conception, agreed?”

Young woman: “I guess.”

Judge: “We also proved that since this living entity is of human origin and human destiny it is species specific to the human race, right?”

Young woman: “I guess.”

Judge: “Is that not the definition of a person?”

Young woman:  “Oh—-well yes—–maybe—-I guess you could say that.  But the real test is the Court proceeding.  How would you admit all this?  Surely other jurists have thought of all this before now.  I can’t believe the Court and other legal scholars haven’t discounted these ideas after all this time.”

Judge:  “Humph!”  The old man muttered under his breath.  “Depends on whose court and what was allowed, I think.  There was a time when fact, that is the self evident, spoke for itself and was so regarded.  Now the most obvious is not allowed without challenge and must be expounded on by one or another expert.  This inclination points to one of the more disturbing trends of our time.”

Young woman:  “What do you mean?”

Judge: “I think it should be obvious. If the activities of the courts are viewed overtime anyway.  Our institutions in general and the courts in particular are becoming less and less bulwarks of principle and ever increasingly instruments of expediency.  Disregarded is the fact that beyond such bulwarks lie only chaos.”

Young woman: “But isn’t it the duty of government, including the court system, to identify and correct social, economic, political and whatever injustice it can?”

Judge: “I have a great deal of trouble with that notion.  Apart from the fact the the purpose of the Court is to contain the excesses of the legislative branch, it opens the door to the personal biases of the Judiciary.  Let me give you a hypothetical example even though you haven’t had courtroom experience.  Suppose you are a prosecutor in some Midwestern City.  Let’s say it’s 1968, before Roe.  And let’s say you have been assigned the prosecution of someone who has been charged with participation in an illegal abortion.  You are in the process of jury selection and it is your turn to question a prospective juror, an intelligent young woman in her late twenties.  And you ask her one question. How do you feel about abortion?  And she replies: ‘I think the legalization of abortion is just another step that has to be taken as we go down the road to the full emancipation of women.’  Now, as the prosecutor, on the basis of this answer alone, would you impanel this potential juror?  If you would, why would you, if not, why not?”

Young woman: “Of course not.  She obviously would be prejudicial to my case and favorably disposed to the defense.”

Judge: “Exactly.”  He smiled his slight sly smile.  “The statement she hypothetically made in response to your question.  Would you like to make a guess as to who actually said that?

Young woman: “Thinking for a moment, she responded “I can’t imagine.”

Judge:  “Justice Harry A. Blackmun said that, on April 7th of 1994 after he had retired from the bench in response to a journalist from the Chicago Tribune.”

Young woman: In a low gasp “My God.  You’re not serious.”

Judge: “Yep. The same Justice who said in the preamble to Roe that it was the duty of the Court to resolve the issue “without emotion or predilection.”

“So you see my dear, it has been my experience that whenever justice is qualified in social, economic, political or whatever terms it too often ceases to be justice and becomes a social, economic political or whatever expediency.  True justice is evident of itself and needs no qualification.  If it does, chances are the remedy does not lie in the courtroom.  To place it there as a matter of course may ultimately threaten the Republic itself.  But that is for another time, I think.  The wife will be expecting me for dinner shortly.  We’ll do battle on this again sometime, and hammer once more on the sword of justice.”

Young woman:  She smiled at the idea and responded that she would enjoy a rematch.  “Yes. But I would hate to have to take you on in the courtroom, at least just yet.”

Judge: “Yes—-he mumbled, that is what it’s all about for the likes of us.  That’s where the prize is won or lost.  At the jousting place of minds.”

Young woman: “Prize?” She raised an eyebrow at the thought.

Judge: “Justice.” He replied, on his way out the door—–”Justice is the prize.”

Copyright 1998
theBushwhacker  
Truth is patient and waits in ambush
for both the lie and the liar.

- theBushwhacker

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