Good
Folk,
The
planned proposal for a state constitutional amendment has drawn attention for
being a direct affront to one of the key holdings in Roe
v Wade, 410 US 113 (1972). If you followed the Senate Judiciary
Committee "vettings" of Chief Justice Roberts and Associate Justice
Alito, you are informed by no lesser authority than Sen. Arlen Specter that Roe
is somewhere between "well settled law" and a "superprecedent". If
you are lucky, you have also read the inspired writings of Prof. Rice of
Allow me to explain, emphasizing a few points neither Prof. Rice nor Mr.
Thompson had the space to address.
Half of the two part basis for the decision in Roe
was the majority's finding that the recently ensconced "rights
of privacy" included the right to choose to abort one's preborn child.
Then Associate Justice Rehnquist wrote a fabulous dissent in Roe
demonstrating that, if the 14th Amendment embraced a "right of
privacy", it almost certainly did NOT include the right to abort.
(Hint: Most of the states that ratified the Amendment almost immediately
outlawed abortion!)
The half of Roe's rationale,
the one that concerns me and the
initiative, though, is the bootless assertion that (a) there is a difference
between being a human being and being a "person" (never before was
such a distinction drawn in Supreme Court history), (b) there was no
consensus when personhood ("life") begins, but (c) although the
Supreme Court felt it unnecessary "to resolve the difficult question of
when life begins"(410 US @159), it nonetheless felt competent to
rule that the state of Texas couldn't either!. Deceased Justice Harry
Blackmun wrote for the Court. His rationale for the "ambiguity"
about life's beginning point is as trashy a piece of junk history and fractured
logic as one can find in print. Yet few people ever hear why. So,
here I go.
Justice
Blackmun's essential point is that relevant professional opinion was so divided
on the issue of when life begins as to make it inappropriate for the Court to
take a side in the issue. What he used to justify this assertion redounds
to Justice Blackmun's eternal shame. While Blackmun was careful to note
that then recent
developments in surgical acumen made abortions safer than in earlier eras, he
was hardly so careful to consider recent
discoveries in medicine as they bear on the humanity of newly
conceived babies. What DID he cite for "proof" of the lack of
consensus?
Here's
a comprehensive list:
*
The
ancient Stoics (a philosophical set who lived before Christ) didn't think of
abortion as homicide (410
*
Neither did a majority of Jewish theologians
(Ibid.)
*
Neither, said the Judge, did the Catholic Church, "until the 19th
Century" (Ibid.)
*
Neither did old English common law, all
of which pre dated 1803, which fixed on the date of
"quickening" (when the mother feels the baby move within her) as the
date of life (Ibid.)
*
Neither did Aristotle, who had the idea that gestation involved the preborn
going through three "phases" i.e. the vegetative, the animal, and the
rational (Ibid.)
*
The ancient Persians, Greeks and Romans were all OK with the procedure (410
*
Augustine, possibly inspired by Exodus 21:22(footnote 22)
and,
*
shortly before 1970, on the basis of reasoning never revealed, the
So
what do we actually have of substance to render it impossible for a state to
determine that human life begins at conception? Aside from the enigmatic
sea change of the ABA, we have: (1) the opinion of a school of philosophes who
died out more than 1500 years ago; (2) the theological
opinion of a distinct numerical minority; (3) the opinion abandoned by the Catholic church
two centuries ago, or more; (4) the opinions of imperial civilizations that also
declined and fell more than 1000 years ago, who also condoned exposing the
elderly to the elements to do away with them when they became feeble, and who
also condoned making use of young boys as "belly warmers" when on
military campaign; (5) the quasi-metaphysical theories of a man (Aristotle) who
lived 2000 years before DNA was discovered
; (6) English
common law which was superseded over 160 years before Roe
by acts of the English
Parliament to criminalize abortion., and which, in any event,
were informed by a state of medical understanding that favored bleeding the ill
with leeches to remove "bad humours" ; and (7) St. Augustine, who also
died over 1500 years ago, and whose reference to Exodus 21:22 calls to mind
Exodus 21:20-21, which prescribe when a man can and cannot be prosecuted for beating
his slave(s) to death (makes interesting reading, in this post
Civil Rights Acts world, but just how useful is it to a truly informed notion of
when human life begins?).
In
essence, Blackmun resorts to views formed in antiquity when it was all but
impossible for the opiners to know anything about DNA, and the unique human
identity of a preborn, and born, child at all times from conception to death.
And it is to these
antiquated understandings and beliefs that
What
has been learned about DNA alone in the last 40 years renders it inescapable
that, from the moment a sperm cell and egg interact so as to effectuate
"conception" the "organism" that results is (a) human, and
(b) NOT HIS MOTHER OR FATHER. As opposed to epochs when the harshness of
life, and dearth of pre-natal care rendered each pregnancy far from a guarantee
of live birth, today we enjoy vastly improved prospects for the safe delivery of
every child conceived. What we lack is the will to acknowledge it, and the
honesty to set Roe's
fractured foundation aside and face the known facts of the matter.
The ballot proposal directly accomplishes righting the dishonest wrong done in Roe.
It deserves our strong support. It is time to stop playing
make believe. In the era of CSI
are we truly to side with the obstetric assessments of the ancient
Persians? Just what is so "progressive" about THAT?
Best
always,
MPBucchi
MARK
BUCCHI ESQ.
(248) 589-8800
(248)