Highlights from The Rights of the Unborn: The Constitutional Challenge to Roe v. Wade
and Prospectus For a Legal Challenge to Roe v. Wade

Fr. Clifford Stevens

A legal victory over abortion will not be achieved by one or two cases, but only by the persistent recourse to the courts, as abortion practices are challenged with new data which demonstrate the violation of constitutional rights. What will gradually emerge as these cases are adjudicated are the facts and the principles of a new juridic development, embryonic law.

That development was opened by the Roe v. Wade decision, as the issue of civil rights was opened by Plessy v. Ferguson, workers' rights by Lochner v. New York, and children's rights by Hammer v. Dagenhart. 

Any opposition to abortion in the courts and in the public arena must be a constitutional opposition, based on principles enshrined in the Constitution of the United States, on precedents in constitutional law and on rights which the Constitution was fashioned to secure and protect. Any other effort is not only doomed to failure, but is ultimately counterproductive. This is something that the pro-life legal community has consistently failed to recognize, and has attempted instead to carry on a public relations campaign rather than a constitutional challenge.

At this point in adjudicating the dispute, only one side of the issue has really been heard, the views of those who support abortion. The only history of the question that has been examined, or even aired, is the history of the abortion laws, with an erroneous conclusion drawn from those laws.

The constitutional issue in the abortion question, the termination of unborn life, was not faced by the Court, in fact, the Court refused to consider that issue, much as the Dred Scott Decision refused to face the question of the manner in which Black Africans were brought to the United States or the inhuman manner of their servitude. This was because Roe v. Wadewas presented, on the basis of the briefs, as a case of law facilitating a basic constitutional right, rather than constituting one. Those arguing the case made sure that the question of unborn life and the manner of its destruction would never be faced by the Court. This is exactly the same way that Dred Scott, Plessy v. Ferguson and Lochner v. New York were decided...all of which were later overturned by the Court.

In Roe v. Wade, there was scarcely any appeal to precedent and the precedent chosen, Griswold v. Connecticut, had nothing to do with the unborn. Its only link with the abortion issue was that both cases had some relationship to sexual relations and reproductive matters. The hard work of linking the abortion question with its constitutional precedents was simply not done, and the views of the NARAL, with its cursory examination of abortion laws, was the closest thing to research in formulating the majority opinion. That work of research is still to be done, and with a legal challenge, the results of that research can inform the Court of other precedents and other principles and other facts that were not considered in the first place.

Like slavery, segregation and child labor, the practice of abortion has crept under the tent of the law due to social, economic and political pressures, not on its own merits. It is clear from the history of Bartolomé de Las Casas, in his fight against the Spanish colonial system of encomienda and the consequent genocide of the Indian peoples, that inhuman and barbaric practices can become part of a culture that is otherwise civilized and humane, and that such practices can even become supported by positive law. One has only to read the defense of the encomienda system by Juan Ginés de Sepúlveda, Las Casas' great antagonist, before the Council of the Indies in 1551, to realize the lengths that the legal mind will go to defend barbaric practices.

The Supreme Court cases that parallel Roe v. Wade are not those concerned with privacy, but rather those that were concerned with providing a legal cover for acts of violence, and the closest parallels in time are Brown v. Board of Education, which outlawed segregation, U.S. v. Darby which ended child labor, and Muller v. Oregon, which banned the exploitation of workers by industry. With Roe v. Wade, the time was ripe for the bringing to close the unlawful use of power, political, military, economic, physical, as the cover for other acts, that the law had always considered inhuman and barbaric. Instead, a legal cover was provided for yet another act of violence, joining slavery, segregation, child labor and exploitation of workers in the long list of violent acts given legal sanction by the court.

InRoe v. Wade,abortion was accepted as standard medical practice, just as low wages, appalling working conditions and the grinding poverty of workers were accepted as standard contractual practices in Lochner v. New York. In both cases, the judiciary gave those exercising power over others the legal judgment over their own acts. In the case of abortion, the judiciary refused to examine the "medical" result of the surgical operation called abortion, or the claim of medical science that the procedure was merely a medical matter. The will of the patient and the willingness of the doctor were the only factors that entered into that judgment. Just as surely as the failure to recognize that Black slavery involved the oppression, exploitation and violence done to kidnapped Africans was the root of the constitutional contradiction in Dred Scott, so the failure to recognize that abortion involves the violent extermination of unborn life is the root constitutional contradiction in Roe v. Wade.

The root procedural error in adjudicating Roe v. Wade was to look upon the decision as facilitative of a basic right, rather than constitutive of a right, and that was because of the dependence of the Justices on the written briefs of the NARAL, which had defended the view that abortion laws were fashioned solely to protect a woman from unsafe surgery. In consequence, the abortion issue was not seen in the progression of laws securing constitutional rights, and the issue of the unborn was considered peripheral to the case. As in the case of slavery, segregation, the exploitation of workers and child labor, the constitutional issue was given a legal cover that became the focus of the dispute and the deciding factor in the majority opinion. Only by future litigation can the real constitutional issue emerge.

Until the time of Louis Brandeis, it was impossible to get the Supreme Court to consider the rights of workers, just as it seems impossible in the wake of Roe v. Wade to bring the Court to consider the issue of unborn life and its destruction as the real focus of the abortion dispute. That is done by litigation, by bringing before the Court again and again actual cases in which the medical and surgical methods used in destroying unborn life are part of the dispute. Just as Liberty of Contract was used as a legal cover for gross injustices to workers, hiding the violation of their constitutional rights, so the Right to Privacy is used in the abortion issue as a legal cover for the violent death of the unborn. Similarly, just as the Court finally recognized that freedom of contract is not unlimited and could be used for the exploitation of others, so the Court has to be persuaded that a right to privacy has its limitations and cannot be used a legal cover for violent actions.

It is undoubtedly true, that if there had been no litigation, there would have been no Plessy v. Ferguson, but it is just as true, that if there had been no further litigation, there would have been no Brown v. Board of Education. Sometimes such litigation works in an opposite direction, or on two levels at once. If there had been no Dred Scott v. Sandford, there would nave been no Dred Scott Decision, with its graphic and almost obscene legal defense of racism. The litigation and its tragic consequence only served to highlight the human and moral issue involved in the slavery question, and made its own contribution to the abolition of slavery. Roe v. Wade and its sister decisions can serve something of the same purpose. The complete failure of these decisions, like many leading up to Dred Scott and Plessy v. Ferguson, to face the real constitutional issue involved, in this case, the violent destruction of unborn life, only brings that issue, in all its human drama, more and more into focus, until the judiciary is forced to examine the otherside of the controversy.

A life-giving precedent can wither and die in the judicial process if it is not known, if it remains hidden in the presentation of the case, if it is concealed under a legal cover that hides the true nature of a dispute. In Dred Scott, the legal cover was property rights, and with that as the precedent, the Missouri Compromise was declared unconstitutional, which had outlawed the spread of slavery to new Territories. In Muller v. Oregon, it was liberty of contract, which declared any demands made by workers in their employment contracts unconstitutional, as well as any state regulating of employer-employee relations. In Roe v. Wade, the legal cover is the right to privacy, which declares unconstitutional any denial to a woman of access to an abortion. The principle extracted from the case was the right to privacy, based on a flawed presentation of the facts of the case. The judges were not properly informed. What the defending lawyers should have demonstrated, in defending the abortion laws, was the progression of laws protecting human rights, the precedents in this progression, and the underlying principle of these precedents. That underlying principle is a complex one, applied to new persons and new human conditions in the history of constitutional law, taking on a new legal name and a new legal face, as new violations of human rights emerge in human history. At one time, it is "The Laws and ordinances Newly-made for the Good of the Indies and the Preservation of the Indians". At another, it is the "Emancipation Proclamation", given constitutional force by the "13th, 14th, and 15th Amendments". At still another time, it is "United States ex. rel. Standing Bear v. Crook."

But even though it could not be named, it could be identified by the very nature of the cases, from the laws framed or the decisions handed down. And the progression showed a development of law, a growth of the law, from the condition of adulthood (Dred Scott, Standing Bear, Woman Suffrage, Brown v. Board of Education) to the condition of childhood (Child Labor Laws, United States v. Darby, etc.), with the directive force of the precedent leading to the condition of the unborn. Expressed in legal terms, the law showed a progression from the autonomous moment of Adulthood, to the pedagogical moment of Childhood, to the embryonic moment of the unborn. A skillful lawyer would have led the Justices through this progression, for this is what legal reasoning is all about. And it is this kind of reasoning that applies precedents to new applications of the law.

IN A LEGAL CHALLENGE TO Roe v. wade, the dispute is not over known constitutional principles or the application of existing laws to the question of abortion; it is the growth of the law into a new and uncharted legal territory, the aligning of a new set of facts to ancient and age-old principles, to established precedents in which these principles are embodied, and the linking of this new legal offspring to its legitimate legal ancestors.

The link that was made in the Roe v. Wade decision is with abortion laws, the formation of those laws, the purpose of those laws, the obsolescence of those laws. And a judgment was made, based on invalid historical assumptions and erroneous medical information, that those laws were purely medical matters, due to the primitive and unsafe surgical methods of the time, and that therefore the judgment in the matter is a medical one, and that it is for the physician to decide whether an abortion is called for in any particular case.

[T]here are no precedents relating directly to abortion. The issue of abortion has to be shown as part of a larger canvas, just as slavery and segregation had to be shown as part of the securing of the human rights laid down in the Constitution for every class of human being. 

Most constitutional lawyers agree that Roe v. Wadeis a constitutional disaster, but they are not agreed why. What the case awaits is the isolating and identifying of its ratio decidendi, its underlying principle, linking it with its precedents, and revealing what the Common Law has insisted all along: that the unborn have a special place in the application and administration of law. This Roe v. Wade denied. What has to be demonstrated, in the white-heat of legal reasoning, is that the Roe v. Wade decision is an illegitimate progeny, claiming for itself a constitutional inheritance which does not belong to it.

IT IS A STRANGE FACT OF HISTORY that human rights become a matter of law only after their savage violation. Law develops from lawlessness. That was true of Las Casas and the genocide of the Indians of Spanish America. It was true of Abraham Lincoln and the abolition of slavery, and it was true of Thurgood Marshall and the outlawing of segregation. It is strange, but in keeping with the history of law that the entrance of the unborn into the legal arena was through the issue of abortion. But this follows the pattern of constitutional history: from the securing of rights for different classes of people (African-Americans, Native Americans, workers, women), to those who have not reached their majority (minors, the young, children, infants), and now, the unborn. Every step of the way began with violence, the denial of human status to justify the violence, the denial of legal status, the denial of rights. There has been almost no exception, the precedents are legion.

UNDOUBTEDLY, ABORTION IS THE MOST VEXING constitutional question that has been brought to the Supreme Court, but it is by no means the most difficult or the most unprecedented. Slavery was a far more explosive issue, far more entrenched in legal precedents and supported by positive laws of long standing. Segregation had been given the cover of constitutional precedent and embodied in countless Supreme Court decisions, defended by statesmen and constitutional lawyers and deeply ingrained in the habits of public and private life for vast numbers of people. Child labor was part of a widely accepted economic practice, upon which families and employers depended for their livelihood, and even attempts by the federal government to eliminate the practice were overruled by the Court. There is no long-standing precedent with regard to abortion, certainly none as long-standing as liberty of contract which held as a precedent in workers' rights for almost fifty years, or separate, but equal, which supported segregation laws for fifty-eight years.