On January 22, 1973 the Supreme Court struck down all the abortion laws of this nation. The decision that loosed the evil of abortion unto the unborn is remarkable not for its insight in the principles of law but for its disavowal of them. The Court played connect-the-dots with the Constitution and traced out a new right that had not previously been seen by anyone, not even those who wrote the laws. The Court embraced a new method of constitutional interpretation – the surrealist method. In a salute to Roe, I offer up my list of the top ten logical fallacies of Roe.
- The abuse of classical history: the Court cited as support for its decision the fact that the Romans and the Greeks allowed abortions without acknowledging that they also practiced infanticide. By that same logic the presence of slavery in Greek and Roman societies ought to have refuted the cause of the abolitionists, or worse, it would be an argument for slavery. Still, followers of the Court are left asking: What do the laws of the Greeks and the Romans have to do with modern constitutional interpretation?
- The abuse of legislative history: the Court tried to undermine the validity of statutes against abortion by noting that the statutes were of a relatively recent vintage (less than 100 years old). Similarly, laws protecting the civil rights of minorities would have to be considered even more constitutionally suspect because they were enacted even more recently.
- The misinterpretation of the purpose of laws: the Court notes that abortion was hazardous to a woman’s health when anti-abortion laws were first enacted. It then speculates that the laws were meant only to protect women. It gave little consideration to the notion that with the improvement in technology, which brought an increased awareness of the reality of pregnancy as an event of unbroken continuity, the laws were meant to protect the baby. The Court tries to claim that since abortion is now relatively safe, the laws may be safely overturned. But the Court is doing nothing but speculating on conjecture posited on an unfounded hypothesis.
- Misusing the Constitution: the Court half-heartedly bases the “right” to abortion in the Fourteenth Amendment. That amendment makes no mention of abortion, the history of debate on it shows no mention of abortion, and no one who worked to ratify it thought it mentioned abortion. They all thought it protected the freed slaves, but who said the Court paid attention to actual legislative history when trying to decide what a law means?
- Seeing things in the Constitution: the Court recognizes, “The Constitution does not explicitly mention any right of privacy,” but it then uses this unmentioned privacy right as the foundation of the abortion right. It continues by reciting various decisions that have used this privacy right which is found in the First, Fourth, Fifth, Ninth, and Fourteenth taken together but cannot be found in any one of them in particular. It is seen when the Constitution is looked at from afar, but examine the Constitution closely and it vanishes.
- Making motherhood an illness: the Court contends that children, “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.” But if the inconvenience of children is a reason for ending a child’s life, then it is not apparent that that right should be curbed nine months after conception. The prospect of unique parental admonishments of children arises: “You behave or I’ll use my parental right to end your life,” should surely surpass any threat of a spanking.
- Stigma defense: the Court notes that a stigma may accrue to women who have a child out of wedlock. Few laws have ever been overturned to ease the conscience of a wrongdoer. Should laws against theft be overturned to protect the consciences of thieves?
- Using disagreement to pronounce the truth: the Court samples a wide variety of ideas about the beginning of life. These ideas all disagree and from that fact the Court concludes, implicitly and explicitly, that it cannot adopt one theory over any other since none of them is right. Disagreement with an assertion of truth proves the truth a falsehood, or so the Court reasons. By the same measure, the very disagreement that I have with the Court automatically renders its decision wrong.
- Begging the question: this point is closely related to the one above. Though the Court says it cannot determine when life begins, it does. It refers the child in the womb as a potential life. Presumably the potential for life becomes so unbearable at some point that the child is born and it becomes an actual life. But what about the day before it becomes an actual life? And the day before that? And so on.
- Basing a decision on the divisibility of numbers: George Will has noted that the reason of the Court depends on the trimester framework – completely arbitrary legally and medically – to assign a different legal status to the fetus during the different stages of the baby’s development. This arrangement would have been confounded if pregnancies lasted a number of months not easily divisible, say, seven or eleven. This is perhaps the first case that turned on the ability of the justices to do math.
The Court has yet to renounce its decision in Roe, but Norma McCorvey (who was Jane Roe) did. She is now pro-life.
Photo by Thomas Hawk (CC 2.0 https://creativecommons.org/licenses/by-nc/2.0/)