Reckoning with Roe v. Wade

 
 

We are still reckoning with the legacy of Roe’s fraudulent jurisprudence.

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On the 38th anniversary of Roe v. Wade, our society still struggles to come to terms with what exactly is at stake in the abortion controversy. In its Roe decision, the Supreme Court repeatedly used the phrase “potential life” to refer to the unborn, but that phrase has never really been adequate. The word “potential” suggests something impersonal and inhuman—a mass of tissue, a lump of cells, something that may at some point come alive and become human.

Such rhetoric belies reality. When MTV ran a special a few weeks ago about the truly heart-wrenching decision of one working-class teenage mother to choose abortion, the young woman proclaimed that she “was in love with this baby already” even as she contemplated ending her pregnancy. It was only later in the episode that she was told by a worker at the abortion clinic that she should “think of it as what it is—a little ball of cells.” But she couldn’t. Pointing to her infant daughter with tears in her eyes, she later realized “nothing but a ‘bunch of cells’ can be her.”

The episode, entitled “No Easy Decision,” dramatized the agonizing choice many young people make. Yet it did more to cloud than clarify what exactly the choice was about. What the young woman was urged to think of as a “little ball of cells” had a heartbeat, a sex, and a unique DNA structure. Scientifically, it was an individual human life. But in the episode, this fact was never really confronted.

The reality seems to have been lost even on some of the show’s critics. In the “Culture Warriors” segment of his popular television show, Bill O’Reilly criticized MTV’s handling of the issue, but he evaded the heart of the matter. “I favor telling kids that if you get pregnant and cannot support that baby,” O’Reilly explained, “that is irresponsible and you may have to kill a potential human being.”

When a viewer challenged O’Reilly’s statement the next day, insisting that a “fetus is a human being with potential, not a potential human being,” O’Reilly responded that he couldn’t let his own religious beliefs influence his commentary. He was merely stating things as they are.

But, religious beliefs aside, this is not how things are. To say that the unborn child is potentially human is to say that it will somehow develop into a human being at a later stage in life. That is nonsense. With the proper environment and nutrition, it will develop into a newborn, a teenager, maybe even a political pundit. But a human being it has been—actually, not potentially—since conception.

This fact is logically prior to any discussion of ethics or law, and in order for the conversation to move forward we desperately need clearer thinking about what is at stake in the abortion debates. When a self-described traditionalist such as Bill O’Reilly relegates to a quaint religious belief the traditional and commonsense view that an actual human life is ended in an abortion procedure, there is still much work to do.

This common error—that something other than actual human life is involved in abortion—was at the heart of the Supreme Court’s reasoning in Roe v. Wade, and it has skewed the abortion debate in America for the last forty years. The Court’s argument in Roe was, in fact, that unborn children possess only “the potentiality of human life” (to use Justice Harry Blackmun’s phrase) and that the Framers of the Constitution did not consider the unborn to be “persons.”

Justice Blackmun found support for the latter argument in a law review article written by the late New York Law School Professor Cyril Means. In the article, entitled “The Phoenix of Abortional Freedom,” Means made the novel claim (“untold now for nearly a century”) that abortion was a traditional common law liberty in America. In his new history of abortion, Means insisted that the unborn were, in fact, uniformly considered to be non-persons by the American Founders and that “all American women [and their abortionists] enjoyed” a common law liberty to abort when the Bill of Rights was passed in 1789. This he juxtaposed with the “sentimental romanticism” of those who consider the unborn to be “little human beings.”

Professor Means’ article, however, was a monumental sham—either a case of grossly negligent scholarship or worse. The chief evidence Means cited in support of his view that the American Founders considered the unborn to be non-persons was Samuel Farr’s 1787 Elements of Medical Jurisprudence, which was published the same year as the Constitution. But Farr’s medical treatise directly contradicted Means’ theory. In unambiguous language, Dr. Farr maintained that human life began “immediately after conception” and that “nothing but the arbitrary forms of human institutions can make it otherwise.” There was no doubt, Farr further editorialized, that the destruction of what “may be supposed indeed from the time of conception, to be living animated beings . . . ought to be considered a capital crime.”

While of course no serious or compassionate person today would advocate making abortion a capital offense, as Farr did, every embryology textbook would confirm what doctors like Samuel Farr knew in the eighteenth-century—that abortion kills an actual human being. On some level we can’t help but know this. That is why we continually dehumanize the unborn with euphemisms and circumlocutions. But in the twenty-first century—an age of 4-D sonograms and prenatal surgery—any honest conversation about abortion must start with the humanity of the unborn. Prior to ethics, law, theology, and whatever else, we need to at least have a clear view of what it is we’re talking about. And what we’re talking about is more than potential life.

Justin Dyer is an assistant professor of political science at the University of Missouri-Columbia. He can be reached at dyerjb@missouri.edu

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