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Abortion: The Reasons We Should be Against It: A Critique of the 1973 Supreme Court Decision
In my investigation of the abortion issue, I discovered that few people who argue for the pro-life position have actually read the 1973 Supreme Court decision. I am one of them. I, like many others, have only read bits and pieces of the Court’s statements, or heard them in a passing conversation. It wasn’t until I was required to give a lecture on abortion that I actually sat down and read the whole document. As I read it, I was continually amazed at what a weak, vague, ambiguous, subjective and biased piece of literature it really was. At one point, for example, the Court even admits that it cannot …resolve the difficult question of when life begins…the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
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One would think that, speaking as a legal entity, if the judiciary admits it is incompetent to answer the question as to when life begins, it would be required to recuse itself from deciding the abortion issue and let stand the present law until such a time that the judiciary has solid evidence to make a decision. Instead, a rushing to judgment occurred in 1973, and one which has now allowed, under legal protection, the killing of over 40 million innocent unborn children. At another point the Court argues that abortion should be allowed due to purely self-interest reasons. It states: The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. In other words, because the baby, both before and after its birth, may inconvenience the mother, the Court deems it justified that she has the right to terminate its existence before it is born. This has to be one of the most barbaric commentaries on human existence I have ever read. Essentially, the Court is saying: if the baby doesn’t suit your needs, you can just throw it away. I wonder what the Supreme Court justices would have thought if their mothers had considered them an “inconvenience” and had decided to terminate their existence? Or better put, how many potential Supreme Court justices, we wonder, have been snuffed out of existence by a mother who thought that her baby was merely a disposable commodity with no more value than a used tissue? Unfortunately, when men reach this level of absurd thinking, the society itself does not have long before it totally collapses. The main reason that an unborn child cannot, for any reason, have its life terminated by any intervention of man is that he possesses a soul – a supernatural gift from God that distinguishes all other living things from man. The soul does not generate physically, rather, it must be infused into the individual by an act of God as soon as conception takes place in the womb. Man is a physical being and a spiritual being. When he dies, his physical body and spiritual soul separate. The body dies and is buried, but the soul lives on without interruption and is placed in the appropriate state in the afterlife. The body will then be reunited with the soul at some future date. Against these time-honored truths, the 1973 United States Supreme Court denied that a child conceived in utero is a “person,” and implicitly denied any value to the act of ensoulment. Consequently, the Court concluded that the unborn does not have any protection under the United States Constitution. According to the Court, the unborn child does not attain the status of a “person” until he/she is separated from the mother at birth. The Court gave various and sundry reasons for their decision, all of which we will critique and refute in this essay. At one point in its analysis, the Court cited Thomas Aquinas and other opinions in Christian history in an attempt to undermine the view that abortion would not have been allowed by pre-1973 authorities. The Court stated: Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country The reason for the Court’s mentioning of the 40-80 waiting-period is based on its supposition that Aquinas and other medievals would have made some allowance for abortion prior to the 40-80 day period, that is, an abortion prior to 40-80 days would not be the murder of a soul-infused human life. First, it must be noted that whatever are the Court’s reflection or dependence on Aquinas’ view, in the official Catholic position Aquinas is but one opinion on the subject, not the definitive and formal teaching of the Catholic Church. Such binding decisions are only made by the Church’s magisterium. Second, if one asserts that Thomas believed that there was no human soul prior to 40-80 days, nevertheless, it must also be admitted that he did not believe this granted permission to abort the unborn child during that period of time. Thomas was against abortion in all cases, as were all the rest of the Church’s Fathers and medieval theologians, as we will see momentarily. The only view he might have held is, if a pre-40-80 day old fetus (i.e., an “unanimated” fetus) was inadvertently killed by a striking of the mother, the person responsible for the incident would not be guilty of homicide. In reference to Exodus 21:22-23, Thomas writes: He that strikes a woman with child does something unlawful: wherefore if there results the death either of the woman or of the animated fetus, he will not be excused from homicide, especially seeing that death is the natural result of such a blow. (Summa Theologica, Q. 64, Art. 8, Reply to Obj. 2). Thomas does not say, however, that it would be permitted for the mother or anyone else to terminate, arbitrarily, the life of the pre-40-80 day old fetus. For Thomas and the rest of the Church, the unanimated fetus held the potential of being born, and that potential could not be disturbed by any whim of man. Obviously, if one knows that a human embryo is waiting for an infused soul at 40 or 80 days of gestation, he necessarily admits that God exists, since he knows that only God can infuse a soul. If he admits God exists, he puts himself under God’s laws. Thus, he killing of the embryo would be with the cognizance that God intended to infuse a soul into it at 40-80 days gestation. Either way, he comes between God and the embryo. As the Catholic Encyclopedia puts it: In all these teachings and enactments no distinction is made between the earlier and the later stages of gestation. For, though the opinion of Aristotle, or similar speculations, regarding the time when the rational soul is infused into the embryo, were practically accepted for many centuries, still it was held by the Church that he who destroyed what was to be a man was guilty of destroying a human life. The great prevalence of criminal abortion ceased whenever Christianity became established. It was a crime of comparatively rare occurrence in the Middle Ages. (Vol. 1, p. 48, 1911). The remaining question for the Church to settle, then, was not whether abortion could be permitted, since Thomas and the rest of the tradition were clear that abortion was never permitted for any reason; rather, the question was whether the Aristotelian belief which erected a distinction between an unanimated and animated fetus (which distinction Thomas was employing) was a proper distinction to define the ensoulment of the unborn. That particular question would not be settled until the pontificate of Pius IX, nevertheless, it must be made clear that at no time did the Church prior to Pius IX ever allow abortion for the so-called “unanimated” period of human gestation. Moreover, there is some question as to what, precisely, Aquinas understood by the “animated” fetus, as well as how the 40-80 day waiting-period would fit into the such a time frame when we consider how he described the three stages of the ensoulment of the unborn. Aquinas writes: Consequently it must be said that the soul is in the embryo; the nutritive soul from the beginning, then the sensitive, lastly the intellectual soul…We conclude therefore that the intellectual soul is created by God at the end of human generation, and this soul is at the same time sensitive and nutritive, the pre-existing forms being corrupted” (Summa Theologica, Part 1, Q. 118, reply to objection 2). If we assume, rightly or wrongly, that Thomas understood the “intellectual” soul as the truly human soul, then according to the above quote, Thomas would have believed that a human being is formed only “at the end of human generation.” But this assumption would conflict with the idea that Thomas believed the fetus was “animated” after the 40-80 day period (since he considered the killing of the “animated” fetus a homicide). The unborn could not be considered “animated” and the object of homicide if it did not possess a human soul. Therefore, an alternative understanding to Thomas’ belief about the development of the soul is required. Accordingly, the context of the passage (Summa Theologica, Part 1, Q. 118) does not say that the unborn does not have a soul at conception, but only that at the latter end of gestation the “intellectual soul” is formed, which, with everything else we know about Thomas’ theology, shows that he is most likely speaking of a development of the soul in accord with the development of the body, since, as it was known and still is, the soul is the form of the body. In other words, the soul develops as the body develops, but, in Thomas’ view, a more primitive human soul and human body are present at the moment of conception. If someone were to raise the argument that Thomas also believed that plants had a “nutritive” soul, we must add that Thomas believed firmly in an impregnable distinction between the species, that is, an uncompromising distinction between a vegetative soul and a human soul, each soul being in conformity to its particular species and with no similarity to the souls of other species. But the idea of a delayed ensoulment did not start with Aquinas. Although the Aristotelian influence on Aquinas led him to entertain the 40-80 day waiting period, Platonic philosophy stemming from St. Augustine also seemed to lend credence to the idea. Augustine writes: “The great question about the soul is not hastily decided by unargued and rash judgment; the law does not provide that the act abortion pertains to homicide, for there cannot yet be said to be a live soul in a body that lacks sensation when it is not formed in the flesh, and so not yet endowed with sense” (On Exodus 21, 80). We see this same view expressed in the Enchiridion: For if we shall decide that these are to rise again, we cannot object to any conclusion that may be drawn in regard to those which are fully formed. Now who is there that is not rather disposed to think that unformed abortions perish, like seeds that have never fructified? (Ch. 85: “The Case of Abortive Conceptions”). The idea also seems to be implied in the Apostolic Constitutions, although these had no official authority in the early Church: Thou shall not slay thy child by causing abortion, nor kill that which is begotten; for everything that is shaped, and has received a soul from God, if it be slain, shall be avenged, as being unjustly destroyed" (Constitution of the Holy Apostles, Bk vii, 1, 3). What is not readily known or even admitted is that views of this sort were based on a faulty Septuagint Greek translation, which was not the inspired text of Scripture. In common practice, if a biblical exegete knows that the Septuagint differs radically from the Hebrew text, he must defer in making any doctrinal conclusions based on the Septuagint text. Augustine, since he didn’t know Hebrew, often based his interpretations solely on the Septuagint and had thus made similar exegetical errors elsewhere in his writings. To illustrate the point, the LXX of Exodus 21:22-23 reads: “And if two men strive and smite a woman with child, and her child be born imperfectly formed, he shall be forced to pay a penalty…But if it be perfectly formed, he shall give life for life.” The Hebrew reads: “And when men fight and they strike a pregnant woman and her child comes forth and there is no injury surely he shall be fined…But if injury occurs, you shall give life for life.” As one can see, the renderings are quite diverse. The Hebrew offers no description as to the stage of development of the fetus, nor even considers it germane to the civil matter at hand. Yet the LXX implies that the whole issue centers on intrauterine development. Obviously, anyone reading the LXX alone would come away with a completely different impression of what the text was actually saying than what the Hebrew allows. Although someone might argue that the LXX might have the more correct rendering of the original text (since it is older than the Masoretic copies of the Hebrew Bible), this is quite unlikely when the Pentateuch is in view, since the Hebrews took the greatest care with the books of Moses than they did with any other part of the Hebrew Bible. In addition to Augustine’s unfortunate dependence on the Septuagint, we must also point out that, regarding the question of how or when ensoulment occurs, Augustine pleads ignorance, and wonders if this is an area in which he will never find the true answer. In his treatise on The Soul and Its Origin, he writes: Will you, my dearest brother, be able to teach me, or any one else, whence human beings at their birth are ensouled, when you still know not how it is that their life is so sustained by food, that they are certain to die if the aliment is withdrawn for a while? Or will you be able to teach me, or any one else, whence men obtain their souls, when you are still actually ignorant whence bags, when inflated, get the filling? My only wish, as you are ignorant whence souls have their origin, is, that I may on my side know whether such knowledge is attainable by me in this present life. If this be one of the things which are too high for us, and which we are forbidden to seek out or search into, then we have good grounds for fearing lest we should sin, not by our ignorance of it, but our quest after it. For we ought not to suppose that a subject, to fall under the category of the things which are too high for us, must appertain to the nature of God, and not to our own. (The Soul and Its Origin, Bk VI, Ch 5, 4) Other Fathers saw little distinction between the formed and unformed fetus. For example, Basil writes: Let her that procures abortion undergo ten years' penance, whether the embryo were perfectly formed, or not (Canon 2); But the man, or woman, is a murderer that gives a philtrum, if the man that takes it die upon it; so are they who take medicines to procure abortion (Canon 8). In other places Basil’s condemnation of abortion is absolute: "She who has deliberately destroyed a fetus has to pay the penalty of murder...here it is not only the child to be born that is vindicated, but also the woman herself who made an attempt against her own life, because usually the women die in such attempts. Furthermore, added to this is the destruction of the child, another murder... Moreover, those, too, who give drugs causing abortion are deliberate murderers themselves, as well as those receiving the poison which kills the fetus" (Letters 188:2; 187) The 1911 Catholic encyclopedia concurs with this analysis. It states: As early as the fourth century of the Christian era, St. Gregory of Nyssa had advocated the view which modern science has confirmed almost to a certainty, namely, that the same life principle quickens the organism from the first moment of its individual existence until its death (Eschbach, Disp, Phys., Disp., iii, vol. 1, p. 47). Not surprisingly, the Fathers were in consensus on the forbidding of abortion at any stage of fetal development. Below is a sampling of their writings on the subject: Jerome: “Some, when they find themselves with child through their sin, use drugs to procure abortion, and when (as often happens) they die with their offspring, they enter the lower world laden with the guilt not only of adultery against Christ but also of suicide and child murder” (Letter to Eustochium, Letter XII). John Chrysostom: “Why sow where the ground makes it its care to destroy the fruit? where there are many efforts at abortion? where there is murder before the birth? for even the harlot thou dost not let continue a mere harlot, but make her a murderess also. You see how drunkenness leads to whoredom, whoredom to adultery, adultery to murder; or rather to a something even worse than murder. For I have no name to give it, since it does not take off the thing born, but prevent its being born” (Commentary on Romans, Homily xxiv). Athenagoras: "We say that women who induce abortions are murderers, and will have to give account of it to God. For the same person, would not regard the child in the womb as a living being and therefore an object of God's care and then kill it.... But we are altogether consistent in our conduct. We obey reason and do not override it" (letter to Marcus Aurelius in 177, Legatio pro Christianis ("Supplication for the Christians"), p. 35). Clement of Alexandria: "Our whole life can go on in observation of the laws of nature, if we gain dominion over our desires from the beginning and if we do not kill, by various means of a perverse art, the human offspring, born according to the designs of divine providence; for these women who, if order to hide their immorality, use abortive drugs which expel the child completely dead, abort at the same time their own human feelings" (Paedagogus 2). Tertullian: "For us [Christians] we may not destroy even the fetus in the womb, while as yet the human being derives blood from other parts of the body for its sustenance. To hinder a birth is merely a speedier man-killing; nor does it matter when you take away a life that is born, or destroy one that is coming to birth. That is a man which is going to be one: you have the fruit already in the seed" (Apology 9, 6); "We are not permitted, since murder has been prohibited to us once and for all, even to destroy...the fetus in the womb. It makes no difference whether one destroys a life that has already been born or one that is in the process of birth." 4 Hippolytus: "Reputed believes began to resort to drugs for producing Sterility and to gird themselves round, so as to expel what was conceived on account of their not wanting to have a child either by a slave or by any paltry fellow, for the sake of their family and excessive wealth. Behold, into how great impiety that lawless one has proceeded, by inculcating adultery and murder at the same time" (Refutation of all Heresies, 9, 7). Minicius Felix: "Some women take medicines to destroy the germ of future life in their own bodies. They commit infanticide before they have given birth to the infant" (Eschbach, Disp, Phys., Disp., iii, CE., vol. 1, p. 48). The Didache: "Thou shalt not murder a child by abortion." (2:2); "The Way of Death is filled with people who are...murderers of children and abortionists of God's creatures" (5:1-2). Two early Church councils also struck a hard line on abortion. The Synod of Elvira, 306 AD, stated: "If a woman becomes pregnant by committing adultery, while her husband is absent, and after the act she destroys the child, it is proper to keep her from communion until death, because she has doubled her crime" (Canon 63). The Sixth Ecumenical Council (AD 692), stated in Canon XCI: “Those who give drugs for procuring abortion, and those who receive poisons to kill the foetus, are subjected to the penalty of murder.” Later, several popes reiterated the Church’s hard line against abortion. Pope Stephen V (d. 891), decreed: "If he who destroys what is conceived in the womb by abortion is a murderer, how much more is he unable to excuse himself of murder who kills a child even one day old" (Epistle to Archbishop of Mainz). At one point the Church, under different popes, seemed to change its position on the legality of abortion. In 1588, Pope Sixtus V wrote an edict titled "Effraenatam" which enforced excommunication for those who performed abortions at any stage of gestation. Three years later, Pope Gregory XIV, revoked Sixtus’ decree. He reinstated the "quickening" test, which did not inflict a penalty up until 116 days into pregnancy (16½ weeks). According to the Catholic Encyclopedia, this change was not for the purpose of altering the Church’s stand against abortion in all cases, but for an ecclesiastical issue, namely, that candidates for Holy Orders who advocated abortion prior to “quickening” were to be regarded differently than those who did not (CE., vol. 1, p. 49, 1911). In the 1600s the concept of "simultaneous animation" gained much more acceptance in Western Europe, that is, the position that the embryo receives a soul at conception. Hence, to clear up any confusion left over from the ecclesiastical debate between Sixtus and Gregory regarding Holy Orders, Pope Pius IX stated the Church’s official position in a papal bull of 1869. A distinction between "fetus animatus" and "fetus inanimatus" would no longer be considered in any ecclesiastical decisions, whether it regarded Holy Orders or not. As such, Canon law, both the 1917 and 1983 codes, simply refers to "the fetus" without any distinctions. In the overall theological picture, the body is sacred. The Old Testament set the precedent in that it did not allow any markings or mutilation of the body, and these principles carried over into the New Testament and were expanded into the realization that the human body is not our possession, but is God’s possession, and is to be a temple of the Holy Spirit. We are to use it as directed. It is on loan to us, as it were. We will now proceed with further critique of the 1973 Supreme Court decision. The Court stated: The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on re-argument. Regarding “personhood,” the Court then asserts: “The Constitution does not define ‘person’ in so many words.” After citing a half dozen instances where the Constitution uses the word “person,” the Court concludes: But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. Notice several things here: Later the court will argue that the concept of “privacy” upon which the 1973 abortion law rests is not “explicit” in the Constitution, but the Court nevertheless, allows itself to decide that it exists implicitly. Thus, if the Court can infer an implicit proposition from something that is not stated explicitly in the text (e.g., such that the Court can infer that the Constitution speaks implicitly to a right of privacy even though it does not explicitly mention privacy), one could argue that the Court, on the same grounds, should argue that it is proper to infer from the Constitution that “person” includes an unborn child, even though the Constitution did not say so explicitly. To substantiate this logical connection we simply ask the following questions: Is there any evidence that the founding fathers would not have considered the unborn child as a person, or that an abortion could be performed based on an implicit right to privacy in the Constitution? History shows us that the answer to both is no. Nevertheless, the Supreme Court argued as follows in footnote 54: When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command? The justices have rightly discovered a contradiction in the Texas law. The Catholic Church, on moral grounds, also prohibits abortion to save the life of the mother. (See citations following). But if the Court sees a contradiction in the Texas law, it should not be seeking to make abortion legitimate for more liberal reasons (e.g., privacy) based on the rationale that the Texas law was inconsistent. The correct solution is for the Court to eliminate the contradiction in the Texas law. Such would occur if the basis for the decision was not merely whether the Texas laws contradicted Constitutional law, but whether abortion itself was morally licit or not. In the next paragraph, the Supreme Court says: 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. First, from footnote 54 we learn from the Court’s own citations that it decided the definition of “person” in the face of, and counter to, the 1969 Wisconsin abortion statute which defined an “unborn child” to mean “a human being from the time of conception until it is born alive” (Wisconsin Statue 940.04, 6); and the 1972 Connecticut statute which said it was the responsibility of the state “to protect and preserve human life from the moment of conception” (Conn. Statute, Public Act No 1, May 1972). Even, by its own admission that it is working without a definition as to when life begins, the Court dismisses the Wisconsin and Connecticut statutes out of hand, without so much as discussing where these states may have obtained these anti-abortion laws, or the reasons they held to them so tenaciously. They are summarily dismissed only on two counts: that the Constitution does not use “person” specifically in reference to an unborn child, and that “19th century prevailing legal abortion practices were far freer than they are today.” The Court’s arguments are specious. The Constitution does not use the word “person” in reference to any child, born or unborn, so the argument that “‘person’ doesn’t refer to the unborn child” is logically fallacious on its surface. Second, as we noted in the quote previously mentioned, the Court recognizes that if it cannot support the premise that an unborn child is not a person, the case is dismissed and abortion is automatically outlawed. Reiterating it once again, the Court admits: “If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.” Third, the Court fails to give the reason why “19th century prevailing legal abortion practices were far freer than they are today.” In fact, the reason they were “freer” is that very few people were practicing contraception and abortion in the 1800s, and thus there was no need to have prominent and restrictive laws against abortion. Only in THAT sense was it “freer.” The Court itself admitted in its earlier historical review that: In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman “quick with child”…. Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.The Court then admits: “In the past several years [1950-1973], however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws…” The Court also admits:
“The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.” So, we ask, how could the Court, on the one hand, claim that the word “person” does not include the unborn child based on its claim that “19th century prevailing legal abortion practices were far freer than they are today,” and, on the other hand, give evidence to us that specifically counters that assertion, since the justices admit there was an “anti-abortion mood prevalent in this country in the late 19th century”? Interestingly enough, it is at this point that the Court turns its philosophy on its head and admits its own incompetence to determine when life begins. It states: 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. One would think that if the judiciary is incompetent to answer the question as to when life begins it would thus recuse itself from deciding the abortion issue and let stand the present law until such a time that the judiciary has solid evidence. Instead, a rushing to judgment occurred in 1973, and one which has now allowed, under legal protection, the killing of over 3000 innocent unborn children per day who were denied the title “person” simply because the Constitution forgot to mention them as “persons” directly instead of merely implicitly. Rather than fault the framers of the Constitution or amend their mistake, judicial ideologues have taken advantage of the miscue and allowed men with motives of greed and self-interest to rip these babies from the comfort of their mother’s womb. NB: Today the United States leads the world in abortions, which total more than 1.5 million per year. The United States government is the largest financial donor to abortions, providing close to $200 million per year to abortion services with tax-payer money. A third of Planned Parenthood’s budget is supplied by the U.S. government. Planned Parenthood has about 1000 clinics across the U.S. The Supreme Court then makes reference to various and sundry opinions as to when life begins, citing the Stoics, Judaism, Protestantism, etc. In the midst of these opinions, the Court recognizes that “the existence of life from the moment of conception…is now…the official belief of the Catholic Church.” Of course, in a Constitutional government that seeks to separate Church from State in the making of laws, we wouldn’t expect the Court to base its decision on the “official belief of the Catholic Church,” let alone recuse itself from making a decision it itself admits to having no competence to decide, but this is precisely what it should have done. In admitting that it does not know when life begins, the Court has gone from the sublime to the ridiculous, for now the issue is left up for grabs to even more incompetent individuals. The Court allows “the pregnant woman and her doctor” to be the final arbiters on the life of the unborn. Unfortunately, uneducated mothers and biased doctors are influenced by various philosophers and social engineers who bring forth their amoral opinions to cause further confusion. For example, Princeton ethicist Peter Singer has stated:
“Newborn human babies have no sense of their own existence over time. So killing a newborn baby is never equivalent to killing a person, that is, a being who want to go on living” (FAQ, August 28, 2005, cited by Ben Douglass in “Abortion is Murder”). Other self-proclaimed advisors, such as the liberal Catholic philosopher, Jacques Maritan, give their opposing opinions, in the face of the Catholic Church’s clear declaration against all attempts at abortion: To admit that the human fetus receives the intellectual soul from the moment of its conception, when matter is in no way ready for it, sounds to me like a philosophical absurdity. It is as absurd as to call a fertilized ovum a baby. As for authoritative Catholic sources denying abortion in all instances, even to save the life of the mother, there are several. The Catholic Encyclopedia give a short history of the Church’s magisterial decision on this matter:
“The embryonic child, as seen above, has a human soul; and therefore is a man from the time of its conception; therefore it has an equal right to its life with its mother; therefore neither the mother, nor medical practitioner, nor any human being whatever can lawfully take that life away. The State cannot give such right to the physician; for it has not itself the right to put an innocent person to death. No matter how desirable it might seem to be at times to save the life of the mother, common sense teaches and all nations accept the maxim, that “evil is never to be done that good may come of it”; or, which is the same thing, that “a good end cannot justify a bad means”. In addition, in the encyclical Humanae Vitae, Pope Paul VI wrote: “It is not licit, even for the gravest reasons to do evil so that good may follow there from, that is, to make into the object of a positive act of the will something which is intrinsically disordered, and hence unworthy of the human person, even when the intention is to safeguard or promote individual, family or social well being...directly willed and procured abortion, even if for therapeutic reasons [is] to be absolutely excluded.” Pope Paul VI, Humanae Vitae, July 25, 1968. In the 1995 encyclical, Evangelium Vitae, John Paul II wrote what is essentially an infallible proclamation of the Catholic Church in these words: Therefore, by the authority which Christ conferred upon Peter and his Successors, and in communion with the bishops of the Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral. This doctrine, based upon that unwritten law which man, in the light of reason, finds in his own heart (cf. Rom 2.14-15), is reaffirmed by Sacred Scripture, transmitted by the Tradition of the Church and taught by the ordinary and universal Magisterium. In 1930, Pope Pius XI stated in his encyclical on Christian Marriage: What could ever be a sufficient reason for excusing in any way the direct murder of the innocent? This is precisely what we are dealing with here. Whether inflicted upon the mother or upon the child, it is against the precept of God and the law of nature: “Thou shalt not kill.” Besides Jacques Maritan, other Catholic theologians take a decidedly opposing position to the Church’s official magisterial declarations. One Dutch Catholic theologian, P. Schoonenbert, retorts: This fact of the possibility of twinning shows that biologically speaking the fecundated ovum is not yet wholly individual. For, although its hereditary virtualities are set, a cellular division may change it into more than one individual....As long as such a possibility exists, the philosophical definition of individual, which explains it as “undivided in itself,”...is not yet realized....” (P. Schoonenberg, God's World in the Making, p. 50). Schooenberg’s reasoning is fallacious, since if the soul is infused at conception, then a soul was divinely infused into the undivided zygote, and, if another zygote were formed from the first, would infuse another soul into the second zygote. Logically, until if and when the first zygote divides, it is one person and one soul. Returning to the arguments of the 1973 Supreme Court, Justice Blackmun argued that the majority opinion allowing abortion was aware of the “sensitive and emotional nature of the abortion controversy,” but, he said: “Our task...is to resolve the issue by constitutional measurement, free of emotion and of predilection.” He then quoted Justice Holmes from a 1905 court case: “[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” Notice that the criterion for right and wrong is not morality, per se, but whether the U.S. Constitution would conflict with a specific idea or practice. This puts the Constitution on a pedestal and scope it never intended to have, nor claimed to have. In actuality, the Constitution sets up the authoritative bodies but it never purports to address every or even a majority of issues that will confront the republic. That is why 27 amendments have been added to the Constitution. The Constitution implicitly relies upon the good will and moral character of its members to implement the intention of the founding fathers. Let’s expand this principle. Since Amendment 1 of the Constitution says: “Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof...” then those who depend on religious guidance to create the laws that will govern the land, it follows that this religious guidance is something that Congress cannot prohibit, for it is the “free exercise thereof” of religion. Likewise, the Declaration of Independence says: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...” It is implicit that the founders were objecting to the oppression they were receiving from England. In the minds of the framers, England was against the “unalienable rights” given to the States “by their Creator” and “Nature’s God.” This statement shows that the “free exercise of religion” guaranteed by the Constitution was directed toward God and his laws which constituted the “unalienable rights.” Of course, the logical question would be: When did God say, regardless of what religion we cite, that these “unalienable rights” only extended to those outside the womb? Let’s posit in the face of this logic that the Court will claim the Constitution: (a) does not forbid abortion and (b) that it allows for the right of privacy in such morally-charged issues. Let us, for the sake of argument, say they are right, that is, that the Constitution does, at least implicitly, guarantee the right to privacy in cases such as: “activities relating to marriage,” “procreation,” “contraception,” “family relationships,” and “child rearing and education,” which, incidentally, are the specific areas the Supreme Court cited as decided by State law which allow the defendant a right of privacy. That being the case, this shows a fundamental flaw in the argument, and inadvertently a flaw in the Constitution, since it ends up making the “the right of privacy,” which is a thoroughly subjective criterion, the absolute upon which moral issues are judged. The Court itself admits to the element of subjectivity in the “right to privacy” when it later states: …it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly. Here the Court makes a purely subjective judgment regarding when privacy should have limitation, since there is no logical reason that the privacy should end if, indeed, the unborn is categorically unfit for personhood at any stage of its gestation. Later, the Court will conclude that “privacy” terminates at the end of the first trimester. During the first trimester the State can have no interest or authority over the decision of a woman to have an abortion. We will examine that stipulation later. Conversely, there is no subjective element in the Catholic Church’s position. The Church declares that there are no areas of “privacy” for the individual, since the Church is responsible for his complete welfare. The Church can only be responsible if it has the prerogative to set boundaries for every area of the individual’s life. Thus, the Church has set boundaries around: “activities relating to marriage,” “procreation,” “contraception,” “family relationships,” and “child rearing and education,” the very areas that Constitutional government has now refused to include, whereas it had done so in previous decades under ecclesiastical guidance. The arbitrariness of the Court’s conclusions are enough to show that neither the Constitution nor its interpreters can be certain of their decisions, otherwise they would not be changing them in mid-course, and especially over issues of such gravity as abortion. Of note, the Court will later argue that the State law allowing abortion in cases regarding the mother’s health conflicts with sound reasoning since, in the Court’s opinion, without a prior legal decision one cannot determine whether the unborn’s life or the mother’s life should be saved. But this argument can be turned against the Court. We can argue that the Supreme Court’s claim to the “right to privacy” contradicts sound reasoning since there are many cases in which the court admits that “privacy” cannot be employed as a justification for one’s actions (e.g., suicide, yelling the word “fire” in a populated building, shooting a non-aggressive trespasser on one’s property, etc). By what criterion, then, has the Court decided for the “right to privacy”? It is based solely upon whether the unborn is a “person” or not. We have seen already by the Court’s own accounting of the history of abortion that almost all societies and religions had little quarrel with viewing the unborn as a “person.” Even those who made some allowance for the “quickening” definition (that is, the unborn was not considered human until it moved on its own) we find that abortion was limited to the very first weeks of gestation, not, as the 1973 Supreme Court has allowed, for the whole 266 days of gestation. All of us know instinctively that life necessitates growth. We see plants grow. We see animals grow. We see humans grow. We know there is nothing that lives that does not grow. Growth is part of being alive. This leads to the premise that stopping the growth process interferes with the intrinsic nature of living things, and it follows that if we interfere at even an early stage of the growth process, we cease its natural and predetermined end. Consequently, to claim that one can stop the growth at its beginning without doing an injustice to the organism is to disregard the intrinsic principle of growth as a characteristic of all living things. Accepting the principle of growth requires us to recognize that primitive stages of growth cannot be used as justification for abortion, for we know that growth requires time. If, as science has discovered, the embryo has a heartbeat within three weeks of conception, the principle of growth requires us to accept that this heartbeat came from growth, and that it has a determined end. As William Hamrick argues, the fetus' potential personhood is a "real" potential as opposed to the "theoretical" potential: "The zygote is already potentially what it will actually be as a mature infant. Its potentiality is real, not merely theoretical because, although its morphology and capacity for experience are sketched only in outline, it is nonetheless a real outline. This is not, as it may appear, a mere play on words. Rather, it is to enforce the conclusion that, although there is in the zygote only a blueprint of the finished structure, the blueprint has the singular peculiarity of being built into the structure” (William S. Hamrick, "Abortion: A Whiteheadian Perspective," an unpublished 1980 paper available at the Center for Process Studies, Claremont, California, p. 25). The Supreme Court also recognized the principle of growth when it wrote in its conclusion: …the State…has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling’…. This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State….With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at 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. So if the Court admits that the case becomes “compelling” for the State to limit a woman’s prerogative to privacy regarding abortion, it admits that there is a point at which the growth of the fetus makes it obvious to our senses that we have a living entity that cannot be regarded as mere tissue and discarded arbitrarily. If that is the case, we can argue against the Court’s rationale by picking a point the Court has arbitrarily decided that the fetus now deserves State intervention, which, the Court claims, is the end of the first trimester. We can then work our way back, day by day, in the gestation process. That is, at one day prior to the beginning of the second trimester, is there any significant difference between that fetus as opposed to a fetus on the exact day of the second trimester? Except perhaps for a few more cells that have divided and grown, the answer is obviously, no. Now we go back to the day prior to the second trimester and compare it to the day before the prior day. We can do the same until we reach conception. The process of counting the days backwards shows that one cannot make a definitive demarcation between one day and the next, or one hour from the next, and this it shows the Court’s fallacy in picking an arbitrary point for State protection, as well as the fallacy of creating distinctions of the different stages in the womb for the purpose of determining personhood. The arbitrariness of dividing the trimesters of pregnancy based on the hierarchy of one trimester over another trimester came back to haunt the Supreme Court in a most graphic manner, that is, when Partial-Birth abortion was introduced a few years ago – the procedure that allows the woman’s doctor to partially deliver the baby, feet first, so that the head remains in the vaginal wall from where its brains can be sucked out by a surgical device. Obviously, if the working definition of an infant is such that he is not a “person” until he is completely out of the woman’s body, there is simply no legal reason why it cannot be aborted halfway out the womb. This fact gave Justices Ruth Bader Ginsburg and John Paul Stevens the rationale to uphold Partial-Birth abortion on the basis that it is “simply irrational” to propose that an intra-uterine abortion is not as “brutal…gruesome…cruel…and painful” as Partial-Birth abortion. One nurse, Brenda Shafer, working at the Martin Haskell clinic in Dayton Ohio (known as one of the leading practitioners of PBA), stated: “It was the most horrifying experience of my life.” She added that
“the baby’s body was moving. His little fingers were clasping together. He was kicking his feet. All the while his little head was still stuck inside. Dr. Haskell took a pair of scissors and inserted them into the back of the baby’s head. Then he opened the scissors up. Then he stuck the high-powered suction tube into the hole and sucked the baby’s brain out. I almost threw up as I watched him do these things.” Incidentally, over 90% of all abortions in the U.S. are performed in the first trimester. One of the obvious reasons for this is that the woman and her doctor avoid any State interference in their decision. Since some States are still opposed to abortion, they would naturally seek to intervene in abortions proposed in the second and third trimesters. If the Court stresses “viability” of the fetus as the cut off point for the right to privacy, first, would the fetus be non-viable one day prior to the second trimester? No, so this shows the arbitrariness of the argument. Moreover, the argument depends on an undefined meaning to the term “viability.” Certainly a child born at 13 weeks (the end of the first trimester) is not “viable” in the sense that it could survive on its own outside the womb, and most likely would not survive even if there were medical intervention to save its life. If “viability” is defined as having an independent existence and being able to survive on one’s own effort, not even a two-year old child could be considered “viable.” As we noted earlier, laws in the United States do not allow self-mutilation or suicide, even in private. Hence, the Supreme Court stated that the basis for its 1973 decision allowing abortion agreed that: The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, (1905) (vaccination); Buck v. Bell, (1927) (sterilization). So in the court’s opinion, one cannot cut off his right arm if he decides he doesn’t like it or need it, but, ironically, the Court allows the same person to cut out a growing being in the uterus. This rationale is supported by even weaker language that introduces it, since the Court says that “it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases.” As we have noted, the Supreme Court admitted that “The Constitution does not explicitly mention any right of privacy,” nevertheless, it concluded that
“In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 1891, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” The Court cited precedent cases relating to the 1st, 4th, 5th, 9th and 14th amendments, notable among them is the Griswold versus Connecticut case in 1963 striking down the Connecticut law that forbade contraceptive devices. Thus we see here how the contraception mentality is intimately connected to the abortion mentality, a prediction of consequence that Pope Pius XII foresaw back in the early 1950s before contraception became so widespread in the 1960s. Since a majority of abortions are performed as a means to take over where contraception has failed, the connection is undeniable. Moreover, we also see that the public at large is not capable or willing to curtail its slide into immorality. Yet they are not fully to blame. The reticence of many Catholic bishops to endorse the Vatican's re-affirmation of the traditional Christian opposition to artificial contraception has led, in many cases, to Catholics embracing abortion as a natural backup measure for contraceptive failure. That separation of sex from procreation has also accelerated the acceptance of homosexuality, same-sex "marriage" and many other forms of sexual license with consequent severe damage to family life. Because the Constitution was silent on whether an unborn child was a “person,” basically, the Supreme Court, acting as if its hands were tied, turned over the role of defining and deciding the matter to the individual, and thus the justices stated that there were various and sundry “reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy.” Hence, because of an admitted flaw in the Constitution (since the Constitution did not exhaustively define the meaning of a “person”), the Court says it has no recourse and turns the matter over to a doctor and patient. The doctor then becomes the authority, and the country is thus run by unelected and often amoral individuals. Regarding the 14th amendment, the court stated: This 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. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. We see in the Court’s rationale for allowing abortion the same self-interest mentality we noted previously, that is, to avoid the social stigma or physical inconvenience of having a child. Less than 3% of all abortions are performed based on the health of the mother. The major arguments for abortion (e.g., health of mother, deformed children, and rape or incest) amount to only 7% of abortions. The vast majority, 93%, are for social or self-interest reasons. 48% of all abortions are serial, that is, they are performed on woman who have had one or more prior abortions. At present, 25% of all pregnancies end in surgical abortion, and most abortions occur in the age group of between 20-24. In all classes and ages, black women abort their babies almost 50% of the time, while white women do so less then 20% of the time. Reasons, in descending order, women cite for having an abortion (taken from recent poll):
According to the 1973 Supreme Court, all of the above are legitimate reasons for procuring an abortion, for the Court stipulates no limitation regarding the rationale one may choose. In essence, the Court said that the reason for an abortion does not even enter the issue. A case study of the medical profession and its attitude toward abortion shows that in the late 1960s nothing short of a “diabolical disorientation” pervaded the country. Up until 1970, the health and legal professions were thoroughly against abortion. Just prior to the 1973 Supreme Court case of Roe versus Wade, the tide changed dramatically. We can see this dramatic shift in the medical profession by tracing its history on the subject of abortion. For example, the Hippocratic Oath states:
“I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion” and “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.” (L. Edelstein, The Hippocratic Oath 10 (1943), 154, 3. Although some Greek thinkers commended abortion prior to viability (See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25), the Pythagoreans forbade abortion in all cases. They understood the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Hippocratic Oath most likely stems from the Pythagorean viewpoint. The Supreme Court itself recognized that the American Medical Association was to be credited with a large part of the reason that there was an “anti-abortion mood prevalent in this country in the late 19th century.” The evidence bears this out. An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am. Med. Assn. 73-78 (1859):
“The first of these causes is a wide-spread popular ignorance of the true character of the crime - a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening. As noted previously, around 1970 a dramatic shift occurred in the medical community. The Pill had become popular just a couple of years earlier, and the Catholic Church laid down the law against contraception. In support of the former, in October 1970 the American Public Health Association and the Executive Board of the APHA adopted Standards for Abortion Services, and thus made the following recommendation for abortion:
“a. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other nonprofit organizations. Likewise, at its meeting in February 1972 the American Bar Association House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972). |
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Justification
By Robert A. Sungenis, M.A., Ph.D. 