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Roe v. Wade is an especially famous court case where the Supreme Court ruled that a woman’s right to privacy includes her constitutional right to abort her child in the womb. This particular case started the debate in America over not only the legality of abortion, but also the moral philosophy of it. Roe v. Wade created division and conflicts in America, separating people into pro-life and pro-choice groups. Even though abortion is legal in many places, Christian teachings tell that life begins at conception and the ending of the life after that point is purposefully ending a child’s life. Since the Roe v. Wade case, many people accept abortion and ignore the morality of it. But I disagree with the Supreme Court’s decision in Roe v. Wade and believe that it was legally and constitutionally incorrect.
Most of the historical evidence provided by the Court was misinterpreted, historical evidence does not support a woman’s right to an abortion. The earliest known abortion laws were in the Code of Hammurabi in Babylon. These are ancient laws, being promulgated around 1727 to 1728 B.C. These laws dealt with someone unintentionally causing a woman to miscarry, forcing the perpetrator to pay a penalty, or in some cases putting the perpetrator’s daughter to death. The next known laws on abortion are from the Assyrian King Tiglath-Pileser I. In the twelfth century B.C., he codified laws that had accumulated from the fifteenth to twelfth-century B.C. Unlike the Code of Hammurabi, a woman who caused herself an abortion would be put to death, and penalties were given to those who helped with it. Another ancient civilization that forbade abortion was the Hittites. Even though their sexual morals were low, there was a prohibition against abortion to all persons and all accessories used, financial penalties were also given. There are no laws mentioning abortion within ancient Egyptian civilizations, but they did exhibit respect for unborn life that would be incompatible with abortion. Abortion was also condemned in ancient Indian religious writings. In ancient Jewish tradition, abortion was only accepted when necessary to save the mother’s life. Children were accepted as a part of the mother while in the womb instead of being their own person, mainly to settle property ownership. Ancient Jewish citizens considered bareness as a curse and fertility as a blessing, so abortions were not accepted easily. In later ancient Jewish laws, those who caused a woman to have a miscarriage were put to death. The Court provided conflicting claims about abortion in the Greek and Roman civilizations. Some claimed that abortion was just practiced in these areas, others said that it was performed without scruple. From looking at history, it is known that some of the most prominent physicians, philosophers, and moral spokesmen of Greece and Rome opposed abortion, the Law also talks about it. Soranus, an ancient Greek Physician, did not support abortion, he said: “It is the task of medicine to maintain and save what nature has endangered”. Seneca, an ancient Roman philosopher, while defending infanticide, indicates having a sense of wrongdoing and writes in praise of his mother for not having an abortion. The ancient Roman poet, Ovid, viewed abortion as unnatural and wrote that “the first one who thought of detaching from her womb the fetus forming in it deserved to die by her own weapons”. The first-century Roman Stoic philosopher, Musonius Rufus referred to abortion as a “danger to the common-wealth” and supported laws made against it. The Court wrongfully claimed that Plato and Aristotle were among the ancient Greek thinkers who ‘commended abortion’. The Court misinterpreted many of their writings as supporting abortion, while the writers were only writing about certain children being hidden from the city, not killed. The Court erroneously assumes that Socrates is inherently a spokesperson for Plato, and that everything said in that regard should be taken at face value. Plato writes about abortion as a last resort solution, and Aristotle does not support abortion as an easily available option, but instead gives caution to those who are careless. The Court is also wrong in saying that ancient Greeks and Romans did not believe abortion to be a subject to be addressed by their laws. Sparta did not permit abortion. The ancient Spartan lawgiver, Lycurgus and his eminent Athenian contemporary Solon prohibited abortion. At least from the time of Augustus, ancient Roman law did punish abortion by deportation and loss of good, or by being put to death. Later pagan emperors Septimius Severus and Antonius Caracalla both punish abortion with banishment. Even though infanticide was common in ancient Greece and Rome, the citizens at the time shared the idea that abortion was undesirable and is wrong because it goes against the course of nature. Another aspect of ancient attitudes addressed by the Court includes the Hippocratic Oath. The Oath contains a strong condemnation of abortion: “I will neither give a deadly drug to anyone if asked for it, nor will make a suggestion to this effect. Similarly, will not give to a woman an abortive remedy”. The Court concluded that this Oath represented “only a small segment of Greek opinion” and “was not accepted by all ancient physicians”. This and many interpretations by the Court show the underlying philosophical position and that universal truths can be unknowable. The Court leaves out pertinent information and misinterpreted most of the evidence and supplied, revealing that if the Court had been truthful, the outcome of the Roe v. Wade case could have been much different and it could have been lost. Most historical evidence does not support a woman’s right to have an abortion and supports the child’s right to life, but the Court misinterpreted the evidence and painted a different picture of the information supplied.
The Court’s view of abortion at common law states that abortion, whether before or after quickening, was never a crime at common law. Legal Precedent and common law do not support a woman’s right to an abortion and supports the unborn child’s right to life. The Court based their view on the work of Cyril Means. Means relies on three different early cases to establish his position that abortion was liberty at common law. The first case is from 1327, the Twinslayer’s Case. This case includes a woman who was in the advanced stages of pregnancy bearing twins being beaten by a man, ‘D’, afterward one of the twins died and when the other one was born, it died soon after due to the injury sustained. Due to lack of proof and D already being arrested under different charges, D was not punished for this particular case. The next case that Means uses to support his pro-abortion stance is, the Abortionists’ Case, from 1348. In this case, one was indicted for killing a child in the woman, he was not arrested because it was difficult to know whether he killed the child or not. Means says that the court dismissed the indictment in this case because abortion was not a crime at common law. One of Means’ critics, Robert M. Bym, proves that this is not true because there would have been no indictment in the first place if abortion was not a crime at common law. The Court refers to the writings of different early common law commentators regarding abortion. The Court refers to the following commentators: Bracton, Fleta, Coke, and Blackstone. The Court acknowledges that Bracton, writing before the two cases mentioned before, says that abortion is homicide. Writing a century later, Fleta, still before the two cases mentioned, concurs, including the liability of the woman herself. In the seventeenth century, Edward Coke is known for a famous passage in his ‘The Third Part of the Institutes of the Laws of England’ in which he describes abortion of a child in the womb as ‘a great misprision’. Contemporary commentators have erroneously defined ‘misprision’ as a ‘misdemeanor’, this hardly expresses the weight Coke put on the offense of abortion. Blackstone regarded abortion as an offense against the unborn child, his concern was partly with the protection of the child and not just the mother. Both the Court and Means mention Bracton, and the Court mentions Fleta. Neither of them regards what was said as important, even though each of them searched for an answer to the question of whether there was a common-law liberty of abortion. Neither of them discusses Blackstone’s points about an unborn child’s right to life and personal security. The Court completely accepts Mean’s rationale for dismissing Coke’s views. This neglect from the Court and Means is important to the third case, in which Means believes shapes the common law of abortion. The third case is the Sim’s Case from 1601, where a man beats a woman who is great with a child, the child is born living but has bruises on his body, and the child dies soon after. If the wounds could be proven to be from the perpetrator, then he would be convicted. This case is consistent with the other two cases, the court is unable to convict for murder unless the child is born alive with wounds and then dies. Means, and later the Supreme Court in Roe v. Wade, accuses Coke of making up a crime of abortion when Coke followed Bracton and Fleta in considering abortion as a criminal offense. Coke even considered abortion as a lesser offense compared to Bracton and Fleta. Further evidence is provided that abortion is not a common-law liberty is provided by Dennis J. Horan and Thomas J. Marzen. They pointed out that before the nineteenth century, physicians did not help women give birth, but instead midwives did. From the early times of American history, the laws that governed midwives prohibited abortions. This fact contradicts Means’ statement that before 1830 only the common law-controlled abortions in New York. The Court asserted that the right to privacy, which includes the right to abortion, is found in either the Ninth Amendment or in the liberty clause of the Fourteenth Amendment. The Ninth Amendment covers three headings, Blackstone describes them as personal security, personal liberty, and private property. Blackstone extends personal security as a right to life for the unborn child. According to Blackstone, the Ninth Amendment does not include a right to abortion, in fact, it gives rights to the lives of unborn children. There is no basis under the Ninth Amendment to support the conclusion in Roe v. Wade.
Paying attention to nineteenth-century American law, the Court showed support for three different cases: State v. Murphy, Smith v. States, and In re Vince. In the Murphy case from New Jersey, 1858, the case establishes that abortion was a crime at common law and that the state legislature did not seek to prohibit abortion only to protect the woman. The Court misinterpreted what the case had established that there was a concern for protecting the unborn child. In 1851, the Smith case states the contrary of what the Court interpreted it did. This case specifically says that if a woman purposefully causes herself to miscarry or injure the unborn child, she is liable for prosecution, yet the Court misinterpreted it. In re Vince case of 1949, it states that if a woman causes or consents to an abortion, she could be charged criminally, yet the Court stated that it established the opposite once again. The Court purposefully left out two different cases that established a purpose to protect the life of the unborn child. These New Jersey cases were State v. Gedlicke in 1881 and State v. Siciliano in 1956. In the cases that the Court cites, they indeed establish a stance that the woman would not be prosecuted and that she was the victim. They, however, left out that the law was not only concerned for the woman, but also the unborn child. In the Allaire v. St. Luke Hospital case, the judge made the notion that medical science had shown that even though the unborn child was within the woman’s body, it was not just a part of it. In the notable case of Bonbrest v. Kotzin, in 1946, the court rejected that the unborn child at any stage of development was a part of the mother’s body, the court is quoted as saying: “The law is presumed to keep pace with the sciences and medical science certainly has made progress since 1884”. The Supreme Court’s statement in Roe v. Wade that the unborn child could not recover damages unless “viable, or at least quick” is invalid as well. By 1973, there were already at least nine jurisdictions that rejected the viability requirement. There were also thirty-two cases from thirty jurisdictions that allowed recovery by the unborn. Only nine jurisdictions expressly required viability, and by 1973 two of them no longer required it anymore. Five cases established that the question of whether a non-viable child could recover was not discussed because it was not an issue in the case at hand, and three of these later said that viability was not required. The remainder of the cases did not establish a clear answer, but by 1973 two of them held that it was not required. The Court used the traditional rule in tort law, stating that the legal rights of the unborn child depend on him being born alive. The Court concluded that these actions vindicate the parents’ interest and demonstrate only the potentiality of the child’s life, this is again misinterpreted by the Court. Wrongful death is usually for the benefit of the deceased survivors or their belongings, but a wrongful death presumes that a person existed in the first place. This proves that before 1973 courts had established that unborn children are persons, this is the opposite of what the Court states. In the law of property, an unborn child has rights that go back to the common law. An unborn child could take under a will leaving the property and acting as a tenant in common with his mother. Regarding child support laws, there were already decisions made prior to the Wade case that established that an unborn child was entitled to support payment from his father in the same way that he would after birth. In Metzger v. People and Kyne v. Kyne both affirmed that the father had to pay support to the unborn child. With all that being said, legal precedence does not support a woman’s right to an abortion and supports the unborn child’s right to life.
The Constitution and the XIV Amendment do not support a woman’s right to an abortion and support an unborn child’s right to life. The Court brings up the important question of whether a fetus is a ‘person’ or not under the Fourteenth Amendment. They concluded that a fetus is not a person. The Court also claims that, under the right of privacy, a woman could decide “whether or not to terminate her pregnancy”. At the time of framing the Constitution, a fetus was understood to be a person who was protected by the Constitution. The Court declares that the provisions in the body of the Constitution that use the term ‘person’ could not possibly be referring to the unborn. The first two pieces of evidence they reference are to the Article I, Sec. 2, CI. 2 and Article I, Sec. 3, CI. 3. Both of these particular provisions indeed exclude an unborn child, but they also exclude twenty-year-olds. If the court negates an unborn child’s legal personhood because of these provisions, they would also have to take away all twenty-year-olds’ legal personhood as well. Another two references the Court supplies are the Emolument Clause (Article I, Sec. 9, CI. 8) and the Electors Provisions (Article II, Sec. 1, CI. 2) and the Superseded (CI. 3). The Court uses these to argue who are ‘persons’ if this is the case, then children after birth would likely be excluded because they would probably be statutorily barred from “holding any office of Profit of Trust. The Extradition Provisions (Article IV, Sec. 2, CI. 2) would also exclude certain children from being “persons”. This is because the common law presumes that a child under the age of seven is incapable of committing a crime and excludes them from being a person. The Court is correct in claiming the Fugitive Slave Clause (Article IV, Sec. 2, CI. 3) and the Migration and Importation provision (Article I, Sec. 9, CI. 1) do not apply to the unborn, but these provisions were taken away since they excluded an entire class from legal personhood. It is unjustified to use the constitutional provisions cited by the Court as a basis for claiming that the Framers of the Constitution excluded unborn children from legal protection from the Constitution.
Natural law does not support a woman’s right to an abortion, but supports the unborn child’s right to life. The Supreme Court discusses how the common law treats the debate of the legality of abortion. Even though the Court supports the view of a common-law right to privacy, this confirms that “the common law not only acknowledged a right to life in the fetus but also recognized precedence of this right over the common law right of privacy”. The Court in Roe v. Wade diverged from the originally established precedent and historical legal evidence and gave into their personal politics and social prejudices. That is why I do not agree with the Court’s decision and believe that it was wrong both from the point of view of law and from the point of view of the constitution.
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