Another Fatal Flaw in ‘Death Roe’

Roe v. Wade (1973) is important to Americans. However, let’s expose one more weakness in it. Then it might cease being so important because it was so badly argued.

One of the biggest thrills in being confirmed as a liberal Supreme Court justice has to be giving oneself permission to set oneself up as an instant expert in a variety of subjects, as Justice Sotomayor apparently recommends. That way, the justice can run roughshod over the legislative branch and impose her politicized will on the common people and their representatives.

In Roe, Justice Blackmun, writing the majority opinion that struck down Texas state law limiting abortion, gave himself permission to become an instant professional psychologist and sociologist and OB-GYN rolled into one. He wrote in Sec. VIIIL

 The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. 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. All these are factors the woman and her responsible physician necessarily will consider in consultation.

The goal in that excerpt was to show that not allowing abortion puts so heavy a burden on the woman that the law is oppressive and therefore unjust. But on what basis?

First, he claims that she might experience specific and direct medical harm even in early pregnancy. If her life is imminently in danger of being lost—she could die—then many (but not all) pro-lifers say she should have the right to choose. So far that is not unreasonable.  But the vast majority of abortions are performed out of convenience, not imminent death.

And then he lurches over into his instant “expertise.”

As for his entire description of dark America, the baby who has just been born may actually bring the mother joy. And even if she experiences such distresses, she can seek help from various support groups. Larger churches, for example, have classes and groups that can help young unwed mothers. Alternatively, she can give the baby up for adoption. Many organizations exist to take the child in.

Blackmun says she might suffer stress from the stigma of unwed motherhood. He wrote as an old man in 1973, but even back then the standard way forward for the girl was that she just went to a big city until she birthed the child and gave it up for adoption. That may not be completely stress-free, but people managed. And stigma back then at least in his own mind is certainly not true today. It is hard to find a corner in American society where the unwed mother feels any real stigma. Blackmun was no prophet.

Blackmun did not seriously consider the psychological harm that mothers experience after they abort. What would have become of their babies? Would they have grown up to better the world? Would they still be well adjusted despite the dysfunctional household, if they had regularly attended church? If the mothers experience stress wondering where their babies are after they put them up for adoption eighteen years ago, the mothers and children can still reunite. At least the children are still alive and not snuffed out.

If we have to weigh in the scales of justice a pregnant mother’s nine months of inconvenience as described in the excerpt above against the baby’s life being snuffed out for his entire life, then the decision is easy. Sorry to say for the girl, she must be willing to sacrifice for the sake of the baby’s life right now and its future life.

If it is objected that preferring the baby’s future life over a mother’s life right now is a potentiality argument, then so what? All of us live today in hopes of a better future. As philosopher Don Marquis reminds us, the wrongness of killing is that it deprives the victim of a future like ours. This is true of an eighty-year-old man and an eight-week-old preborn baby.

Why was Blackmun’s analysis of society so one-sided and negative and hopeless? He had to impose his politicized will on the hoi polloi.

So the fatal flaw in ‘Death Roe’ is that Justice Blackmun was not an instant expert in psychology, sociology, and prenatal life. He tendentiously misjudged society both in his time and future trends of the liberalization of morals. He created a dark social scenario in his mind just to rig his foregone conclusion to allow the woman to abort even late in her pregnancy.

In other words, Texas laws back in 1973 were not  oppressive and therefore unjust. But now a late term abortion or an abortion before then is certainly stressful for the baby—life-endingly stressful.

As noted elsewhere, Supreme Court justices, sitting in their isolated paneled courtroom, live in a closed-off world, where they hear other lawyers arguing over numerous interpretations from other lawyers in times gone by. They also read amicus briefs that they can interpret in ways that suit their foregone conclusions. They don’t call in experts that can be examined face to face or who can challenge the justices’ limited knowledge. They act like Plato’s (unappealing) enlightened philosopher-kings who impose their ideology on the hoi polloi and their representatives.

Recently a conservative-leaning judiciary understood its place and limited itself behind Article Two (executive branch), not in the lead, contradicting the liberals on the court who apparently believe they are enlightened and know better than the people occupying Articles One (legislative branch) and Two. The retirement of Justice Kennedy gives us hope. Maybe Brett Kavanaugh will follow the Constitution. Article Three (judicial) comes last and is not all powerful, to the point of dismantling laws that justices and judges may not like.

However, if runaway justices were ever to dominate the court in the future (as they did in the Burger court), then they would run roughshod over the legislative and executive branches. What could they do about it? Nothing based on first principles.

In contrast, the legislatures can bring in experts to promote their causes and can be questioned from all political angles. Meanwhile the politicians can listen to them and when the debates are over, they can vote out of their convictions.

‘Death Roe’ must be overturned and the issue of prenatal life must be placed back in the hands of the legislatures. Then let the real debate recommence.

Image credit: Wall Street Journal

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