The 2 legal fictions in Roe decision

By Rita Dunaway

Every year, on Jan. 22, we are reminded of what can happen when the rule of man prevails over the rule of law. On this date in 1973, seven men made a factually, legally and morally flawed decision that has resulted in the deaths of more than 60 million innocent lives, to date. They declared that our Constitution, constructed on the premise that government exists to protect the lives of its citizens, requires every state to permit the deadly practice of abortion.

In order to reach this conclusion, the seven men who constituted the majority of the Supreme Court in Roe v. Wade had to perpetuate not one, but two legal fictions.

The first is one that has dogged America since its founding: the fiction that not all human beings are “persons” entitled to legal protection.

One might have thought that our judiciary had learned its lesson about the injustice of refusing to treat all human beings as “persons” after the repugnant and rightfully renounced decision in Dred Scott v. Sanford. That was the decision, you may recall, in which the Court determined that a slave, despite his obvious humanness, was not a “person” in the eyes of the law. But sadly, the lesson has not yet been learned.

In Roe v. Wade, Texas argued that the 14th Amendment, which guarantees the “right to life” to every “person,” justified its laws protecting human life inside the womb. The argument thus hinged on the proposition that life begins at conception, and that a pre-born baby is therefore a human being entitled to the rights of a “person.”

In a surprise maneuver, the Supreme Court claimed it was incompetent to rule on when life begins. (Of course, this was pure bunk. Science tells us, without equivocation, that a unique organism exists at conception, complete with DNA that is distinct from the mother and father. This new organism is indisputably human and indisputably living.)

Even more oddly, however, than its dismissal of this pivotal scientific evidence, was the Court’s conclusion that determining when life begins was totally unnecessary to determining whether a baby in the womb had a constitutionally protected right to life.

The Court said that because there was no obvious indication that the Constitution was meant to apply to babies before birth, it surely did not. And yet, the Court ironically staked its ultimate decision – mandating legal abortion in every state – upon its conclusion that women’s “right to privacy,” mentioned nowhere in the Constitution, encompasses a right to abortion.

This is the second legal fiction of Roe v. Wade. This type of “right to privacy” is the Supreme Court’s own invention, dating from 1965. And because the Court made it up, only the Court can decide what it means or how it precludes government from fulfilling its most basic duty to protect human life.

The majority ultimately concluded that its task was to balance the woman’s right of privacy against the state’s interest in protecting “potential life.” That “potential life,” it concluded, had no rights of his own to be considered.

Sixty million dead babies later, we can see how this “balancing” worked out.

In a nutshell, the ruling of Roe v. Wade is the product of seven Supreme Court justices deciding that a right smudged into the Constitution by judges (the “right of privacy”) outweighed the duty and prerogative of states to protect what science proves to be living human beings. By divorcing (again) the legal concept of “person” from the scientific concept of “human life,” the Court deprived defenseless human beings of a right that is explicitly protected in the Constitution, in order to strengthen a “right” of more powerful human beings that is nowhere mentioned in the Constitution.

It is past time for the Supreme Court to reverse this indefensible ruling.

Justice requires laws that recognize and protect the fundamental rights of every human being, regardless of race, age, or conditions of dependency. The failure to marry the concepts of life and personhood enabled previous generations to ignore the human rights of slaves; it enables our generation to exterminate pre-born human beings.

Justice also requires a restrained judiciary that respects the rule of law. The Constitution does not protect every behavior some might like it to protect. It does provide a process through which we, the people, can amend the text to incorporate new rights or expound existing ones. It gives no quarter, however, to judges who would usurp this prerogative for themselves, and make informal amendments through the guise of “interpretation.”

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