ATTENTION: The following is a term paper for a high school course. Plagiarism of this document by a fellow student is inadvisable. [and you know why] :P
The legality of the controversial ruling of Roe v. Wade has been questioned in endless debates, examining the historical views on abortion, the constitutionality of the decision, and the connection of the issue with Natural Law. The traditional opinion as to the qualities which make a Supreme Court decision legal are these: that the Court take into account any historical evidence, including the legal precedent of past Court case rulings, whose systematic pattern would contribute weight to the argument; that the case agree with the Constitution in its direct wording; and, that the case be ruled according to the intent of the writers of the Constitution. In addition, a Supreme Court decision must be in accord with Natural Law, which is the basis for all law, including civil law. These were all taken into account in the Roe v. Wade decision. The Roe v. Wade decision was incorrectly formed in legal process and was unconstitutional as the case lacked the common criteria of legality, and the effects of the ruling opposed Natural Law.
Using the commonly accepted criteria for legality, historical evidence must be examined to link former rulings as well as historical opinions concerning the issue to the immediate case. Consistent historical evidence greatly contributes to the legitimacy of a case, as it did in the ruling of Roe v. Wade. The Supreme Court took into account the pattern of past thought concerning abortion. The Court referenced evidence that abortion was accepted in Greece and Rome, “abortion was practiced in Greek times as well as in the Roman Era, and…it was resorted to without scruple.” The Greeks and Romans of that period accepted the use of abortion as a means for resolving the issue of unwanted children. According to the historical evidence uncovered by the Supreme Court, abortion was considered acceptable and advisable by historical governments, satisfying one of the three factors of legality.
However, much information was not considered in the ruling and some information was incorrectly interpreted. The Court failed to take into account that Assyria, India, Palestine, and Sparta opposed abortion. Specifically, the Babylonian Code of Hammurabi, made in approximately 1728 B. C., was the first law against abortion, “The earliest known laws on abortion were contained in the Code of Hammurabi in Babylon.” This law is significant as it predates all of the facts the Supreme Court used for its support of abortion. The Court’s interpretation of the words of Greek philosophers Plato, Aristotle, and Socrates concerning abortion was faulty as their determinations about unplanned conception make no mention of abortion. The philosophers held the belief that defective children should be hidden away from the world so as not to corrupt those born in full health. It can be properly assumed by this fact that the philosophers did not accept abortion, which led to the termination of human life. The weight of these historical verities against abortion places a considerable strain on the decision of the Court, jeopardizing the legality of the ruling. Based on the historical facts which must support the ruling for a case to be legal, the Roe v. Wade decision is faulty and legally deficient.
Legal precedent was also examined by the Supreme Court as part of the historical argument to determine the legality of the Roe v. Wade decision based on past court rulings on the subject of abortion. Several court rulings were considered, including English Parliament rulings, which were interpreted by the Supreme Court to almost universally conclude that abortion has been viewed as a liberty not to be infringed upon. England established their first statute that punished abortion in 1803, “[the] first criminal abortion statute…made abortion of a quick fetus a capital crime, but in it provided lesser penalties for the felony of abortion before quickening.” This statute established that abortion of a child before quickening was not as serious as an abortion made after quickening, the time when the fetus' movement in the womb is noticed by the mother. However, a later statute established the idea that abortion is acceptable in the case that it would preserve the health of the mother. These Parliamentary laws formed the Common Law, which was the foundation for the American criteria for judging cases involving abortion. The Court found that New York established legislation in 1828 that considered abortion before quickening to be only a misdemeanor, “while barring destruction of an unquickened fetus as well as a quick fetus, it made the former a misdemeanor, but the latter second-degree manslaughter.” The statute followed English Common Law as it punished abortion performed after quickening, but prescribed little to no punishment for the abortion of an unquickened fetus. The Supreme Court research claimed that this law was common and remained in effect until the 1860s, at which time punishment for abortion was greatly increased. The Court named for the support of its position former cases including State v. Murphy made in 1858, Smith v. States made in 1851, and In re: Vince made in 1849, respectfully, though they were not elaborated on in the case. The Court‘s conclusion was that the traditional rulings concerning abortion were in favor of the woman’s right to abort her pregnancy. In essence, according to the Supreme Court, the rulings showed that the Roe v. Wade decision was in agreement with the legal precedent previously formed by the United States court system.
There are some areas where the Supreme Court failed to comprehend the full meaning of legal precedent facts and rulings. The fact that the common criteria for cases involving abortion was founded in English Parliamentary statutes is universally accepted. However, thirty-one states held legislation that punished the practice of abortion before the 1860s, crippling the Supreme Court’s arguments that anti-abortion laws were not enacted until that time. Most of these United States statutes were instituted due to the discovery of the ovum. This advance in scientific knowledge led to a much more complete understanding of conception and the status of the fetus as a human being. One of these legislations was the New Jersey statute of 1858, State v. Murphy, which addressed the prohibition of abortion according to Common Law, which claimed to protect the health of the mother. The Court erroneously used State v. Murphy for the support of abortion. In recognizing that the abortion of a quick fetus is a criminal act, Common Law acted for the life of the child as well as for the health of the mother since it recognized the fetus as a human person. Since the New Jersey statute, “sought to provide an additional reason for the state to punish abortion other than the one under the Common Law…the case establishes two things which the Court says is not so: abortion was a crime at Common Law, and the state legislature which enacted the statute did not seek to prohibit abortion only to protect the woman.” This case was erroneously used as support for a woman’s right to abortion concerning health when it would have correctly been quoted as to be concerned for the life of the baby. The Supreme Court‘s lack of full interpretation of legal precedent jeopardizes the legality of the Roe v. Wade ruling.
Similar statutes were used for the Supreme Court’s argument against abortion as a punishable act, but these also were misinterpreted. Even earlier than the State v. Murphy case, the Smith v. States and In re: Vince cases were used as support for the proscription of punishment for abortions while their meanings were totally misinterpreted. The Smith case explicitly says that a successful abortion or an unsuccessful attempt for abortion by the mother may be considered a criminal act as it terminates or disturbs the life of the child, “[abortion is] intended to affect injuriously, and do so affect the unborn child.” Clearly seen in this phrase, the Smith v. States case viewed abortion as an act that seeks to injure a child in the womb and one that is punishable act by law. The Supreme Court held that the In re: Vince case was against the punishment of women who have received an abortion. The words of the case speak contrarily, “a woman who performs an abortion upon herself or consents to its performance upon her by others is chargeable criminally.” The Court incorrectly interpreted these cases and, therefore, failed to gain the support of legal precedent, furthering its lack of legality as concerns the Roe v. Wade decision.
As designed by the Founding Fathers, the Supreme Court must determine all cases according to the written Constitution as well as according to the intent of its framers for the decision to be legally sound. Using the Constitution, the Court primarily sought to satisfy two questions concerning abortion: the fetus as a person as used in the language of the Constitution, and the woman’s right to terminate her pregnancy according to the Fourteenth Amendment’s assumed right of privacy. In defining "person," the Court relied on context since the Constitution never defined "person" explicitly. In regard to citizenship, the Constitution defines a citizen as a person established in the country, “born or naturalized in the United States.” This means that a citizen is one that migrates to the United States with due legal process or is the offspring of existing citizens. The Constitution uses the word “person” in several other places including the Article One qualifications for representatives and senators. In regarding the fetus as a protected person, the Court found that prevailing laws used to be more lenient toward abortion, stating specifically that they were, “far freer than they are today.” Accordingly, studies showed that the idea that life begins at birth was predominant among the Stoics, a large portion of Jews, and many Protestants. Laws enacted concerning stillborn children directed the Supreme Court’s decision against viewing unborn children as persons protected under the Constitution as these laws claim the fetus is only prospective life, “[the fetus] represents only the potentiality of life.” It was clear to the Supreme Court that the Constitution does not protect the unborn under the term “person” and as such, the Roe v. Wade decision was constitutional.
Nonetheless, the Supreme Court interpreted the Constitution erroneously regarding the personhood of the unborn as the Constitution excludes many from the distinction of being called a “person,” and the assumed right of privacy is only a shallow argument that is easily overthrown by examining the very segments of the Constitution the Court used for the support of abortion. The Court used for its support Article 1 where it is stated the qualifications for representatives and senators. These qualifications for a “person” include an age restriction that excludes unborn children, but which also excludes a teenager or twenty-year-old. This argument is unsound as it may provide for the unborn child’s lack of personhood, but in denying a twenty-year-old’s personhood, the Court would deny all rights to a citizen unanimously recognized as a rational member of this country and beneficiary of equal rights. The same applies to the Emolument Clause, which the Court also cited; the extradition provisions, which exclude a six-year-old as well as an unborn child; and both the Fugitive Slave Clause and the Apportionment Clause, which excluded an entire class of people from the definition of a “person”. The latter two clauses were replaced because of their lack of recognition of the human dignity of an individual, whatever his race. Thus, by using these clauses, the Supreme Court defeats their own argument. The Constitution’s use of “person” may exclude the unborn, but the Court would abhor proscribing any rights to the many others that it excludes.
Subsequently, the Court attempted to prove that the woman has the right to abort the infant in her womb by including that right under the assumed right of privacy. The Fourteenth Amendment does not specifically state the right of a citizen to privacy. The Supreme Court determined that the guarantee of personal liberty implied a right to privacy, which the Court claimed includes abortion. The Roe v. Wade case read specifically that the right of privacy, “is broad enough to encompass a woman’s decision to terminate her pregnancy.” The Court claimed that the spirit of the Constitution supported abortion. Therefore, the Court concluded that the decision to legalize abortion was sound and constitutional.
The Supreme Court’s basis for the right of privacy consisted of numerous cases that did not in any way address the issue of abortion, a few that were misinterpreted, and the only case establishing a woman’s right to privacy established the opposite conclusion that was reached by the Court. The only cases that pertained to abortion in any way were the cases involving contraception and marital relations. These lack the significant support needed for the right of privacy to include a woman’s right to abortion. As long as the contraceptives are used before the embryo is formed, they are of no legal comparison to abortion as their normative use is within the home. Whereas, abortions are most often performed in hospitals and clinics which are obliged to be open to the public as they are businesses run within the guidelines of state law. The fact that abortions are performed in the public arena show that the act is not private and so cannot have legal exemption as a private choice. The only case that ruled in connection with a woman’s right to privacy stated that the only time a woman’s privacy could be infringed was in the case that a medical examination be required to prevent the accidental termination of a pregnancy. A medical examination which infringed the woman’s right to privacy was allowed only, “to ascertain whether a woman convicted of a capital crime was quick with child…in order to guard against the taking of the life of an unborn child for the crime of the mother.” Clearly, in this past ruling, the Court took into account that the fetus was a living being and was so protected by the Constitution that a woman’s right to privacy could be infringed for the child’s sake. These are significant points that were not considered in the Roe v. Wade Decision and thus render the Roe v. Wade decision unconstitutional.
There are several cases that seem to have been overlooked or ignored by the Supreme Court which lend a significant weight on the Roe v. Wade decision as regards the intent of the drafters of the Constitution. Around the introduction of the Fourteenth Amendment, statutes were introduced in many states, regulating, and or restricting, abortion for the sake of the life of the fetus. The District of Columbia Divorce Act stated that a child of a divorcé be the genuine offspring of the parent according to its conception. The child, “begotten before the commencement of the suit (for divorce) shall be deemed to be the legitimate issue [offspring] of the parent.” The phrase plainly uses the word “begotten” which is universally known as meaning “conceived,” establishing that the government recognized the embryo, the child at conception, to be a living human being capable of exercising their legal rights. Several other statutes stated similar phrases in protection of the unborn. The Comstock Acts of 1873 particularly addressed abortifacients. It “prohibited the selling, lending, or giving away of any article…for causing unlawful abortion.” Another blatant proof of the intent of the Constitution’s framers as concerns the issue of abortion is a case in which the clause in both the Fifth and Fourteenth amendments is used in conjunction with abortion to protect innocent life, “no person shall be deprived of life without due process of law…here there is an embryo or fetus incapable of protecting itself.” The fetus is seen as an innocent child, incapable of harming others, but also incapable of protecting itself and must, therefore, be protected by authority. It is apparent that the framers of the Constitution intended for the rights granted by the Constitution to include the lives of the unborn, who by law have equal claim to the privileges of citizenship.
Additionally, the fundamental basis for any law to be sound and, in the case of the United States, constitutional, it must be in accord with Natural Law. The Supreme Court was not interested in identifying the scientific beginning of life in the womb, “We need not resolve the difficult question of when life begins.” Nonetheless, the Court answered the question of the morality of abortion by stating that the unborn child is only a potential form of life and therefore can be morally destroyed for the sake of the mother. The judges relied on precedent to provide for the recurring position of the government on the issue of abortion. According to the Supreme Court, the question of Natural Law is replaced by the decisions already marked in past cases and the separate views of science and medical professionals. The Court did not consider the use of Natural Law as an argument for or against abortion as the case was handled with the intent of omitting religious points.
Natural Law as the basis for all law is directly related to the issue of abortion and was erroneously omitted from the Court’s decision. Natural law consists of morals which immediately affect human reason and direct the conscience in viewing right versus wrong. Natural Law is comprised of “those moral principles which can be determined by natural reason from a consideration of reality.” It is a well known and unchallenged fact that murder is against the conscience, which is the human person’s way of interpreting Natural Law through natural reason. The evidence that the fetus is a human person at the point of conception and remains so through the entire pregnancy is unarguable since it is a highly developed organism at conception, “life begins at fertilization…[f]rom this moment, the being is highly organized, has the ability to acquire materials and energy, has the ability to respond to his or her environment, has the ability to adapt, and has the ability to reproduce.” Thus, the embryo is a human person at the time of conception. It is for this reason that abortion defies the foundation of Natural Law and the morals that the human person is ingrained with at their creation. Pregnancy is the product of a natural act fitted according to the physical structure of the parents and abortion acts against this natural act, “Abortion artificially and unnaturally ruptures a natural and healthy process.” Abortion is the termination of human life, not the divesting of a chunk of matter with the potential for life from a woman’s body. Termination of human life is against Natural Law, “Natural Law teaches that it is immoral to deliberately take an innocent life…the unborn baby is an innocent human life.” Since abortion is the termination of human life, the Supreme Court decision cannot be legally correct, Therefore, the law prescribed by the Supreme Court granting the woman’s right to abortion defied Natural Law, the necessary basis for all law, and is subsequently illegal.
The drafters of both the Constitution and the Declaration of Independence recognized the unbreakable bond between civil law and Natural Law as well as the dignity of the created individual. First, the Declaration of Independence states, “that all men are created equal; that they are endowed by their creator with certain inalienable rights, among these are life, liberty, and the pursuit of happiness.” The word “created” identifies the beginning of a being’s existence versus their state of non-existence. For the human person, creation takes place at conception, giving the fetus equal rights with all born persons. The unborn child’s right to life is an “inalienable” right due to its direct inheritance from the Creator, God. The Constitution clearly identifies the unborn child’s right to liberty, “…and [to] secure the Blessings of Liberty to ourselves and our Posterity,” giving, not only the adults of the country, but also the offspring of the citizens of the United States the full right to life, which must come before liberty. Since life begins at conception, the fetus, as the posterity of its parents, has the right to life. The framers of the Constitution recognized this fact of nature and saw the design of God, as their own words support the unborn child’s right to life. In conclusion, as the Supreme Court did not take these points into account and seeing as their decision opposed Natural Law, the Roe v. Wade decision was unconstitutional.
Therefore, because the Roe v. Wade decision lacked the common criteria of legality and the effects of the ruling opposed Natural Law, it is correctly defined as both unconstitutional and legally flawed. The Supreme Court failed to interpret the historical information correctly and failed to include facts that laid great weight on the outcome of the case, making the ruling legally unsound. The support for abortion by legal precedent presented by the Court was faulty and did not include many cases which contributed a significantly higher amount of support for those against abortion. The Roe v. Wade case was also unconstitutional as it misinterpreted the word “person” and the subsequent Constitutional protection of the unborn. Finally, the case’s illegality and unconstitutionality resulted from its opposition to Natural Law, on which all law and the Constitution are based. Clearly, the Roe v. Wade decision is legally defective, unconstitutional, and deserves to be repealed.
