How I Became a Pro-Lifer (part 3)
The first time I read Roe v. Wade was probably in law school. It’s a strange idea that my college roommate had, that reading the judicial opinion would make me more pro-life. In fact, that’s exactly what happened.
It starts off pretty boring, with Justice Blackmun trying to explain why the Supreme Court has authority to hear the case. The Court is only supposed to hear actual cases and controversies involving real people. There was no case or controversy for Jane Roe (Norma McCorvey); she had already given birth to a baby, and had given the baby up for adoption. (The child was close to two years old when the opinion was written, so it’s kind of mind-boggling to consider that the baby could have been sitting in Harry’s lap while he talked about the right to abort her).
Despite the non-pregnancy in the case, the Supreme Court wanted to issue an opinion anyway, because they wanted to write new laws for our nation. So Blackmun had to spend a few pages talking about why the Court was hearing an abortion case involving a woman who was not pregnant and wasn’t seeking an abortion anymore.
Blackmun’s opinion is pretty bizarre as a judicial opinion. The Supreme Court is supposed to follow the Constitution of the United States, and federal laws. And here is Harry, talking about Plato and Aristotle and Hippocrates. He tells us what the ancient Greeks and Romans were doing. He gives us a 2,000-year history of abortion. And he adds massive footnotes about what the American Medical Association has to say, and what the American Bar Association thinks.
Part of the problem is that Blackmun was a rookie Justice and he had no real experience writing Supreme Court opinions. He was assigned the opinion by Chief Justice Burger, who had the notorious habit of joining opinions he didn’t like so he could control who got the writing assignment. Burger and Blackmun were both Republicans appointed by Nixon.
In Blackmun’s initial opinion, he concludes that “the end of the first trimester is critical.” In a secret memo he circulated to the court, Blackmun would admit that his opinion was “arbitrary,” and also that his opinion was filled with “dictum,” which is a Latin word that means “authoritative,” but when lawyers use the word we mean, “irrelevant as shit.” For instance, abortion rules in the B.C. era would be irrelevant as shit.
According to Bob Woodward, Blackmun’s opinion shifted, as a couple of other Justices (William Brennan and Thurgood Marshall) started helping him with it behind the scenes. So Blackmun added the arbitrary “viability doctrine” to his arbitrary “first trimester” opinion. He cited Plato and Aristotle for viability. Plato and Aristotle are, of course, pagans from the B.C. era, so not what you would call authorities on the U.S. Constitution.
Plato and Aristotle were actually defending the ancient Greek practice of infanticide, which was abandoning newborns to die. Perhaps the most embarrassing part of Blackmun’s opinion is footnote 22, when he talks about Aristotle. Blackmun doesn’t seem to realize (or doesn’t care) that Aristotle was defending the killing of newborns. Aristotle’s theory was that a newborn was not “rational,” therefore it was fine to kill them. Blackmun then makes the insane claim that “early Christian thinkers” adopted Aristotle’s rules on infanticide. No, they did not. The early Christian thinkers were all Jews following Christ. 2,000 years ago, Jews and Christians believed in marriage and having lots of babies (there was no birth control). The pagans killed newborns all the time. Jews and Christians did not practice infanticide. The ignorance in footnote 22 is kind of staggering.
But perhaps the most damning part of the opinion is when the Supreme Court classifies unborn babies as non-persons. There are horrifying modern day examples of what happens when authorities classify human beings as non-persons. It was the legal basis of slavery, of course. And it was also the legal basis of the Nazi Holocaust. If you take a group of human beings and say, “these people are outside the law,” horrific things are going to happen to those innocent people.
Blackmun’s opinion is so awful that he actually cites slavery law in his discussion of whether an unborn baby is a person. In another horrible comment, in footnote 53 Blackmun says, “We are not aware that in the taking of any census under this clause, a fetus has ever been counted.” You don’t have to be a rocket scientist to understand that discrimination against human beings is not proof that these human beings are not human beings. Just because a census taker overlooks some human beings does not give you the right to start stabbing or poisoning them. And of course the United States Constitution was infamous for saying that a slave would be counted as 60% of a person. You’d think a Supreme Court Justice would have some awareness of that history, and how dangerous it is classifying human beings as non-people. Lying gets you in trouble.
One line really jumped out at me: “We need not resolve the difficult question of when life begins.” Blackmun had the astonishing belief that simply classifying unborn children as legal non-persons would make the infanticide question irrelevant. What it actually did was galvanize a pro-life movement and send our country into a 50-year cold war over abortion.
If you’re looking for assurance that abortion doesn’t kill a baby, Roe v. Wade won’t give you that assurance. It’s as if the Supreme Court is shrugging their shoulders and saying, “We don’t know” and also, “We don’t need to answer that question.”
As a matter of fact, the Supreme Court is still defining unborn children as legal non-persons. So it’s not as if the Supreme Court is actually protecting unborn children from homicide. All the Court did in Dobbs v. Jackson was acknowledge that an unborn baby might be a human being, and it might be okay to protect their right to life.