One of the few benefits of deconstruction is that it takes down overwrought orthodoxy. Roe v. Wade has achieved a divine status, like a textual god. But it’s possible to expose its feet of clay.
One prime example of deconstruction is French philosopher Jacques Derrida’s takedown of Freud. Freud built up an edifice of real-life therapy from mere interpretations of the unconscious through dreams or slight gestures or utterances from his patients; his elaborate interpretations had material consequences and impacted how people saw themselves and lived. His far-reaching interpretations from such thin evidence impacted Western society, too.
This is why, among other reasons, Derrida chose the book title The Post Card. So little information is offered on it, so the recipients don’t know how to interpret the scant handwritten text or the beautiful picture. It’s possible to over-interpret the silence – not enough information.
In Roe v. Wade (1973) (available online), never have such far-reaching cultural – and deadly – conclusions been drawn from thin gruel or even silence.
Let’s challenge the interpretations of Justice Blackmun, who wrote for the majority. But the challenges don’t come mainly from a legal perspective (I leave that to Justice Rehnquist in the first two points). Instead, let’s turn the tables by using the deconstruction “model” of interpreting so much from so little, which will show Roe to be primitive, obsolete, and defeasible.
1. The Fourteenth Amendment was so over-interpreted that it was ripped from its historical context.
Justice Rehnquist, who sat on the court when Roe was handed down, writes in the dissent that there were 36 laws in states and territories restricting abortion when the amendment was ratified in 1868; the authors did not have abortion in mind. “The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”
Most powerfully of all, he says Blackmun got too involved in the stages of pregnancy and imposed his own brand of biological interpretations on the states. Rehnquist writes:
The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.
As he rightly notes, this over-interpretation comes out as the nonsensical and overreaching “judicial legislation.”
2. The Court over-interpreted the “right to privacy.”
In Sec. VIII, Justice Blackmun admits: “The Constitution does not explicitly mention any right of privacy.” Then he cites cases that assume it exists. So it takes other cases to find a right that is not found in the Constitution. We are far from the original source.
Worse, he writes in Sec. VIII that the “right to privacy” includes a carefree and comfortable life for the pregnant woman and protects the soon-to-be mother from psychological harm, economic stress, and social shame:
Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
Rehnquist challenges the near absolute right to privacy that Blackmun imposes: “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”
We are far from the mother’s physical life being in danger – that is, circumstances under which she will die if she carries the baby to full term.
Sociologically, how does her comfortable lifestyle outweigh the baby’s right even to have a life? How can Blackmun be so sure of his interpretation of American life? For all he knows, the pregnant woman might get help from a church and improve her and her newborn baby’s lives there; nowadays, many churches, especially the bigger ones, recognize that it is scriptural to help the pregnant woman in need, not shame her. Or she could give the baby up for adoption. We are far from elderly Blackmun’s bleak vision of America back in 1973.
Constitutionally, how does his negative sociology clarify the Texas abortion law that was under review in Roe? It doesn’t. Once again, Blackmun wandered from the original intent of the Fourteenth Amendment, over-interpreted its silence, and imposed “judicial legislation” on the states.
3. The Court was confused about human life.
Justice Blackmun throughout his decision wrongly distinguished between life and human life – wrongly because DNA proves it is human life. So it makes no sense to say, as he does in several places, that it is “potential” human life.
Further, if human life is the criterion, pro-lifers win. All they need to prove is that the entity in the womb is living, not dead, and it is human, not a chimp or a plant.
Undeterred, pro-choicers make the debate narrower by requiring pro-lifers to define personhood, even though Blackman dismissed it as too vague (Sec. IX). Fair enough. Let’s follow Blackmun’s lead and not define it, because any definition would go beyond the scope and intent of the Fourteenth Amendment (where the word “person” appears several times) and because DNA tells us clearly and simply that it is human life.
Next question: Is the human life a being? Of course it is. It fits the criteria of any being: it exists; has its own identity (so says DNA); has properties (e.g., black skin or white skin, and so says DNA for other properties); is distinct from everything else (e.g., from its twin or mother with their own DNA); exists in relation to other beings (e.g., its twin or its mother); and so on.
Building on this bedrock, society must protect the prenatal growing, living human being. However, if the “being” criteria do not work for some pro-lifers, just call it what it is: DNA says it is human life.
Justice Blackmun’s definition of human life, however, was confused, primitive, and now outdated.
4. The Court over-interpreted the baby’s “meaningful” life after viability, as weighted against the mother’s “life or health.”
Blackmun says abortion could possibly be restricted (not that it actually has to be) after the first trimester. He writes in Sec. X, “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb.”
‘Compelling’ means the point at which the state can intervene and restrict or even deny the ‘right to privacy.’
But instead he restricts viability: “except when it is necessary to preserve the life or health of the mother.” As noted in the second point, how can the baby’s right to live a ‘meaningful life’ (whatever that is) override the mother’s right to a comfortable lifestyle, per Blackmun’s definition of a ‘right to privacy’? Why does he get to define what a ‘meaningful life’ is? Once again, Justice Blackmun over-interpreted the ‘right to privacy’ and defined the “life or health of the mother” too broadly. He stacked the deck always in favor of the mother and against the prenatal, living human being.
To conclude, becoming an expert interpreter of a (tendentious) history of abortion (Sec. VI), biology, (primitive) genetics (or no genetics), sociology, psychology, and microeconomics, the majority did not use judicial restraint in 1973. The Court in Roe ran roughshod over the Fourteenth Amendment’s original context, which has nothing to do with prenatal life and abortion.
Coming out of these fallible judges’ extra-confident, controversial interpretations, outright misinterpretations, or over-interpretations, never have such real-life consequences slammed American life as hard as Roe has: at last count, over 58 million babies have been snuffed out.
Clearly, these life questions do not belong to a committee of nine unelected D.C. judges whose interpretations are too often untethered from Nature’s God, common sense, moral law, and the clear facts of modern DNA science. These same judges are restricted to hearing oral arguments in a few hours and reading amicus briefs that cannot be cross-examined. These same judges are also motivated by their unacknowledged political biases.
Here is how the leftist thirst and vision for imposing their politics on the Constitution (all in the name of a fundamental right, as they define the term) works out today:
Utah = Massachusetts
This unwise and simplistic equation lurches over to judicial tyranny imposed by a small coterie of elite judges.
It is clearly better that these life questions should belong to the people and their elected state legislators, whose political viewpoints are acknowledged and who engage in arduous public debates over a long time. They can hold face-to-face hearings with experts who can be cross-examined from both sides.
It may be shocking for judges to hear, but legislators can also find and interpret fundamental rights–even conservative legislators.
We live in a Republican democracy, not a rule by the judges.
It is imperative to overturn primitive and obsolete and outdated Roe, a clay god, and let the states decide which abortion laws work for them.
This post appeared first at American Thinker, on January 13, 2017 and has been updated here.