A case against Roe v. Wade

In 1973 the United States Supreme Court ruled that a woman has a constitutional right to choose an abortion. What is known today as Roe v. Wade became case law 410 U.S. 113 (1973), a legal precedent that extends the protection of the Fourteenth Amendment of the U.S. Constitution to a woman’s decision to abort her unborn child. Specifically, the ruling invoked the Fourteenth Amendment’s privacy clause, which states, in effect, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
While a woman’s decision to end her pregnancy is now protected under the law of the land, the Supreme Court held in the same ruling that the “right” to abort must be balanced against the state’s interests in protecting prenatal life and protecting the mother’s health. It was determined that these interests of the state become stronger over the course of a pregnancy, and that the balancing test should be related to the current trimester of pregnancy.
The legal findings further determined that the state’s interests in regulating abortions are at their weakest in the first trimester when a fetus is less like a fully developed human being than at any other time; but those interests gain strength with each successive trimester of prenatal development. In the second and third trimester, abortion regulation must be related primarily to, and giving weight to the life and health of the mother over that of the fetus.
For the past 38 years the abortion debate has raged, at times more intensely than others. Abortion opponents maintain that life begins at conception, while abortion supporters say the issue isn’t about life, but rather the right to choose.
Abortion proponents, those who call themselves “pro-choice,” have even gone so far as to argue that an unborn child is not the same as a birthed child, and, therefore, is not entitled to the same rights.
Those identifying themselves as “pro-life,” or abortion opponents, have vehemently disagreed with this argument, defending the unborn as human beings without a voice of their own.
Personally, I am anti-abortion, too. Although I am usually a staunch advocate of essential liberty—i.e., the ability to choose without compulsion—I have determined in this case to error on the side of life instead of choice. The reason why is because abortion, while preserving choice for one party—the biological mother—simultaneously denies that same choice to another other party; that being the unborn child, who has no say, no voice and no choice in the decision of whether or not it will die.
Besides essential liberty, and the fundamental right to choose without compulsion, abortion consequently denies another of man’s fundamental rights: Life.
Founding father Thomas Jefferson summarized very succinctly the fundamental rights of man in the July 1776 Declaration of Independence for the American colonies: “We hold these truths to be self-evident, that all men are created equal and endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
Jefferson’s use of the term “unalienable rights” refers to the fundamental rights of man as articulated by the avant-garde of the European Age of Enlightenment. These are natural rights, God created and God given. They are universal and self-evident.
Jefferson references this, too, in the same document, as well as many other letters he wrote in his lifetime on a host of political and philosophical positions.
Other fundamental rights of the Age of Enlightenment and natural law theory include the right to property, security and resistance to oppression. Each of these is addressed in the Bill of Rights, or the first ten amendments to the United States Constitution.
I find it compelling, though, that the very first fundamental or natural right that Jefferson articulates is the right to life: the right to be and to exist. It came before even the right to liberty and happiness.
The right to life is also protected by the United States Constitution in Amendment V, which states, in part, that “No person shall be…deprived of life, liberty, or property, without due process of law…”
And, yet, despite the obvious importance of the right to life in the minds of America’s founders and her constitution’s framers, it is the one right that is routinely ignored and sorely neglected among the unborn.
An important feature of the Fifth Amendment is the use of the term “person” instead of “citizen” or “the people,” the last two of which refer to those who are either naturally born or legalized Americans. To be a “person” protected by the U.S. Constitution does not require citizenship, residency or any other legal nomenclature, but rather just “being” a human individual.
The root of the debate, then, over abortion should not just be when human life begins, but also when “personhood” begins.
Medical facts establish that “life” begins at conception. The Merriam-Webster Dictionary defines life, in part, as “an organismic state characterized by capacity for metabolism, growth, reaction to stimuli, and reproduction.” Since very basic cellular development includes all of these traits, establishing life at conception is not only reasonable, but also rational.
But when does conceived human life become a “person” who is protected by the law? Pro-abortion advocates insist that personhood begins at the moment of birth, while anti-abortion activists argue that “personhood” begins while the unborn child is still developing in the womb.
Merriam-Webster further defines “person,” in part, as “the body of a human being.” The dictionary also defines “being,” in part, as “conscious existence,” and it defines “individual,” in part, as “existing as an indivisible whole” and “as a [separate] distinct entity.”
To be individual requires a level of autonomy that permits one to exist independently. Or, as Merriam-Webster defines, “existing or capable of existing independently of the whole.”
Millions children are born prematurely, and many of them are capable of living outside of the womb despite their prematurity. As such, they are capable of existing independently before they reach full term, and their autonomy can be established prior to birth. What, then, is the difference between a child physically born a month premature and an unborn child a month away from full-term birth?
They are the exact gestational age.
Scientifically and philosophically speaking, there is no distinction. One child is born while the other is unborn; but their functions are essentially the same and so is their physical development.
In addition to autonomy, an individual or person must also be sentient in their actions. That is, “responsive to or conscious of sense impressions” and “finely sensitive in perception or feeling,” as Merriam-Webster defines sentient beings.
Medical facts show that the development of a nervous system starts in the first trimester, as early as the fifth week of pregnancy, beginning with the brain and spinal cord. By week six of the pregnancy, the brain normally has developed into five distinct areas and some cranial nerves are visible.
At the end of 14 weeks, the “fetus” is very well distinguishable as human, with many recognizable physical traits, including head, limbs, beating heart and genitalia. And the baby is even able to make a fist with its fingers.
At week 15, the fetus can make active movements, including sucking motions with the mouth to demonstrate its awareness of hunger and efforts to communicate its needs.
By the end of week 21, the baby should be able to hear. There is hand and startle reflex present during week 26; the eyelids open and close, and the nervous system is developed enough to control some body functions between weeks 27 and 30.
Considering that a full-term pregnancy is about 42 weeks, the evidence is pretty clear that by the end of the first trimester, or after the first 14 weeks, an unborn human child not only looks physically human, but is also able to act human, too, by making a fist with the fingers to demonstrate functional independence.
The unborn child further demonstrates human being qualities within the first trimester by moving about (kicking and swimming) independently of the whole, on its own and self-aware that it can do so. The fetus is conscious at this point that it can move, and how it can move.
Early in the second trimester, the child can arrange its mouth muscles well enough to form sucking motions, indicating that it is aware of its need to satisfy the feeling of hunger and is trying to communicate hunger to its host (the mother). This is evidence of sensitive perception, as well as responsiveness to and consciousness of sense impressions.
The unborn child learns quickly that kicking becomes a form of communicating with its host (the mother) about its needs; specifically hunger. Prenatal babies, though, have also been shown to kick and move around playfully because they may feel good and are happy. They are communicating pleasure and comfort to the mother at these times. At other times, their moving about and kicking may be due to discomfort.
The point is that the moving about isn’t just a physical reflex. There becomes a purpose behind it long before the unborn child is ever delivered.
There is even evidence showing that unborn babies are able to recognize their mother’s voice by the second trimester of pregnancy, and they can grasp the umbilical cord when they feel it with their hands and fingers.
In the third and final trimester, evidence shows that the eyelids open and close; four of the five sense are used, including vision, hearing, taste and touch; the child can distinguish for itself the difference between being asleep and awake; and they are able to relate and respond to the moods of the mother.
The medical findings of prenatal development offer compelling evidence that autonomy to some degree is demonstrated by the unborn child, which can also show at least basic sentience by the end of the very first trimester of pregnancy.
Considering that “personhood” is dependent upon autonomy and sentience to establish that a human is “being,” I can see no valid reason why unborn humans should not be granted “person” status as early as the 14th week of pregnancy. Not only can the child make a fist with its fingers, kick its legs and swim independently of the whole, or host, but it does so freely and consciously without influence of outside forces.
I am convinced that medical facts establish the viability of a human fetus as more than just a “ball of flesh” with physical human likenesses. With sensory perceptions, consciousness and independent movements or actions, an unborn human is sentient and autonomous enough to meet the definition of “being,” and therefore, a person.
As such, I submit that “personhood” can and should exist before birth, and that full protection under the law ought to be given to all “persons” and all “human beings,” born or unborn.
These individuals can and should be given equal protection under the law, as dictated by the Fourteenth Amendment, and their lives as "persons" guaranteed by the Fifth Amendment to the Bill of Rights.
This would be consistent with the interests of preserving what our Founding Fathers and constitutional framers believed to be the first and most important fundamental right of man: Life.
An unborn child, having been established to possess degrees of autonomy and sentience, should not be considered as part of the mother’s “person,” or that which makes up her human “being.” Unborn humans are also not property, because they do not belong to the body. If they did, then they would function like an organ of the body: an essential part of what makes the whole thing work.
But we know that pregnancies are only temporary conditions that resolve by birth and when the womb is empty again. Pregnancies do not interrupt the normal, essential functioning of the mother’s body, although chemical and hormonal imbalances often occur.
As such, an unborn human cannot and should not be considered part of the body, or its effects, either.
The conflict that arises with the Fourteenth Amendment would then be, when and where do the rights of the mother end and those of the unborn child begin?
When a conflict like this surfaces between the rights of one and those of another, I believe that it is government’s responsibility to error on the side of life, simply because without that one right, all other rights are non-existent. There can be no right to liberty, property, happiness or resistance to tyranny without first being a right to life, and the protection of that right.
I don’t believe pregnancy should be forced on a woman, and that part certainly falls within the Fourteenth Amendment. In cases where the life of the mother is in imminent and immediate danger, then, again, it behooves society to error on the side of life and save the mother. To willingly put that life in jeopardy is to violate the natural right to life.
The conflict that results—the unborn life sacrificed to preserve the life of the mother—is not one easily remedied or dealt with. However, to trade the mother’s life for the baby could put the lives of the baby and any siblings in danger, and then the rights of those other individuals are impacted. The choice then comes down to which loss of life will cause the most damage, and clearly, losing the mother to save the baby would do just that.
In cases of rape or incest, I maintain that the Fourteenth Amendment applies. However, I think every reasonable effort should be made to counsel victims on their choices and the alternatives to abortion, because while the conception may have been a crime, the child that results from it is as innocent a victim as the woman.
Error on the side of life. And, whenever or wherever possible, both lives.