Was the Supreme Court Wrong in the Roe v. Wade Decision?

By: Dr. John Ankerberg and Dr. John Weldon; ©2005

As recent weeks have demonstrated, the subject of abortion continues to be a major social issue that will be with us well into the 21st century. The media frenzy over John Roberts — and in particular the concern of some that he could vote to overturn Roe v. Wade— is sparking a renewed interest in the topic. But, as the authors point out, Roe v. Wade was not a shining moment for the Supreme Court.

Roe vs. Wade

As recent weeks have demonstrated, the subject of abortion continues to be a major social issue that will be with us well into the 21st century. The moral, legal, cultural and personal struggle over this topic shows no signs of abating—to the contrary. So how did America become ensnared in a subject that has divided the nation and even the Church? Let’s look back in history to understand how legal­ization of abortion occurred and whether or not that decision was a good one.^[1] Regardless of your views, we think you will be surprised at what we found.

The importance of the Supreme Court’s Roe v. Wade decision in 1973 cannot be underestimated, e.g., “It is the first and crucial issue that has been over­whelming in changing attitudes toward the value of life in general.”^[2]

The Supreme Court decided that at no point during the nine months of gesta­tion is the unborn child protected by law. As Justice Rehnquist observed in his dissenting opinion, “A State may impose virtually no restriction on the perfor­mance of abortions….”^[3]

In essence, Roe v. Wade and Doe v. Bolton (the 1973 companion case), in a wholly arbitrary manner, split pregnancy into three trimesters and issued rulings on each trimester. This resulted in overturning laws prohibiting abortion in virtu­ally every state.

Seven justices agreed with the majority opinion written by Justice Harry Blackmun. The two dissenting justices—Byron White and William Rehnquist— forcefully stated that the majority opinion was wrong, noting that the Court had decreed—unconstitutionally—that any and all pregnancies can be terminated for any reason or for “no reason at all” even though they present “no danger what­ever to the life or health of the mother but are nevertheless, unwanted for any one or more of a variety of reasons—convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.”^[4]

Further, Justices White and Rehnquist concluded they could “find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and with scarcely any reason or authority for its action….”^[5] These justices termed the decision “an improvident [careless and wasteful] and extrava­gant exercise of the power” granted to them by the Constitution, an unfortunate use of “raw judicial power.”^[6]

Another dissenting opinion was provided by Congress itself. In 1981, the U.S. Senate Judiciary Subcommittee on Separation of Powers conducted extensive hearings on abortion in view of the Fourteenth Amendment’s protection of human life. Some twenty-two physicians, scientists and legal scholars testified, and the Subcommittee concluded that the question of when the life of a human being begins was already “answered by scientific, factual evidence” and therefore that the major issue before them was the value of human life. “Pro-abortionists, though invited to do so, failed to produce a single expert witness who would specifically testify that life begins at any point other than conception or implanta­tion.”^[7]

The Subcommittee concluded based “upon the values embodied in our Con­stitution, we affirm the sanctity of all human life.”^[8] In other words, Congress itself could see through the fallacies of the Supreme Court decision.

As we documented in our book When Does Life Begin?, almost all biologists then and now admit human life begins at conception. Further, no one denies that it is morally wrong to kill innocent human life. So how did the Supreme Court come to a decision that encouraged the killing of millions of unborn children? There were several reasons.

First, the Supreme Court appealed to a pagan view of life over against a Christian view. It agreed the ancient pagan attitudes they cited “are not capable of precise determination” but used them anyway in defense of its position.^[9]

Blackmun argued that, “Greek and Roman law afforded little protection to the unborn,” that abortion “was resorted to without scruple” and that, “ancient religion did not bar abortion.”^[10] Of course, Greek and Roman law not only permitted abortion, but infanticide as well. Would the Supreme Court rule in favor of infanti­cide today, simply because it was an ancient practice?

Second, the Supreme Court argued that the state has no compelling interest in restricting abortion until the point of viability (i.e. that point at which the fetus can survive outside the womb). The Court wrongly placed viability at six to seven months.^[11] Actually the Court not only incorrectly cited its own documentation (Williams Obstetrics, 14th edition, page 493; 410 US 113 at 160),^[12] but also it failed to note that even then twenty to thirty percent of infants were viable at four and a half months or twenty weeks.^[13] But the Court held that until six or seven months, allegedly, a human being is not “viable” or “capable of meaningful life” and therefore the state has no vested interest justifying its restriction of a woman’s choice to abortion.

The problem with viability is that it is too unreliable a concept. After all, the fetus is viable at all stages of pregnancy if it is left in its normal environment. Only when the fetus is artificially removed from the womb does viability become an issue. Also, in the next decade, viability could be placed at ten to fifteen weeks. If an artificial placenta is developed, it will be placed at conception. Thus the concept of viability is meaningless.

Third, the Supreme Court argued the unborn child was not a person with the right to equal protection under the law, but only a “potential” person. The Court’s view was that “the fetus, at most, represents only the potentiality of life.”^[14] Obvi­ously, if we first assume life is not present (but only potential), then true life is not being destroyed in an abortion.^[15]

But the Supreme Court’s assumption is wrong. (It even admitted that if it were wrong here, its entire decision “collapses for the fetus’ right to life is then guaran­teed specifically by the [Fourteenth] Amendment.”^[16]) In essence, the zygote-fetus is not a “potential person” because:

• it is alive (not potentially alive);
• it has a unique human nature (not a potential human nature);
• at any stage of development it is most accurately described as an actual person with great potential because personhood, which must be distinguished from personality, is present at conception.

From conception on, genetically and physically, a unique human individual exists. Consider what Landrum B. Shettles, M.D., Ph.D., one of the world’s lead­ing scientists,^[17] states concerning one’s “genotype”:

The power of genotype can scarcely be overestimated. Your genetic makeup—established the moment fertilization is completed and conception occurs—determines not only your physical characteristics, but also—more powerfully than anything else that can be demonstrated—how you will process information, how you will think, what you will be in what we call “mind.”…The genotype that is conferred at conception does not merely start life, it defines life.^[18]

The Supreme Court had access to such data, but ignored it.^[19] One can only wonder. Instead of giving a blanket promotion of abortion, why did they not, at the least, warn women that they could very well be taking human life—with all that implies in fact and consequence?

Fourth, the Court refused to fairly examine the issue of when human life be­gins. The Court claimed, “we need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”^[20]

Of course, the issue of when human life begins never was an issue of philoso­phy or theology—only of science. The Court has traditionally accepted scientific facts over philosophical (and certainly theological) speculation—except, for some reason, in this case.^[21] Nor was the issue ever scientifically or medically as uncer­tain or questionable as the Court implied.^[22]

Contrary to the Court’s claim, a scientific consensus did exist that human life begins at conception, but again, the Court simply chose to ignore it. Medical experts had already unanimously testified before the Court that human life begins at conception. Why then did the Court not listen to them?^[23]

On The John Ankerberg Show for March 4, 1990, Judie Brown, President of the American Life League, revealed some of the unknown background of Roe v. Wade:

We have done a study of how Roe v. Wade came to pass. After Justice William O. Douglas passed away, all of his records were made available to the public. That was just one year ago. We had a team of researchers go down and literally sort through 4,000 boxes of Justice Douglas’ papers. And what we learned by studying all of those papers which related to the Roe v. Wade decision was really, really horrifying.

First of all, we realized that Justice Brennan literally advised Justice Blackmun every step of the way on how to craft judicial arguments that would make it possible to legalize [abortion]. There is also a memo that Justice Blackmun sent to Justice Douglas in which he pointed out that his aim through Roe v. Wade was going to be to legalize abortion no matter what steps he had to take. He wanted to minimize the damage to the judicial process, however, in such a way that he would come up with the most logical argument that the justices could possibly use to legalize abortion.

And so they knew when they took the case—Roe v. Wade and Doe v. Bolton—that they were in fact going to legalize abortion, the only question that was in their minds was how to do it. This is why the justices chose in 1972, when they heard the [scientific] arguments [that life begins at conception],to eliminate all medical discussion from the hearing. There were no pieces of evidence allowed in that courtroom with regard to the humanity of the child in the womb. And that, in fact, was why the justices were able to say “physicians and theologians do not agree on when life begins so we will simply not discuss the issue. This is strictly an issue of a woman and her right to make a decision with her doctor.”

So the humanity of the child was discounted immediately because Justice Blackmun and Justice Brennan both realized that if they were to take a good look at the evidence, medical evidence, with regard to the existence of the child, they would not be able to legalize abortion, something they had already made up their minds to do.^[24]

The bias of the Court should be evident. It ignored known scientific data— data presented before it and with which it was familiar—in order to “support” its ruling.

Fifth, the Court’s decision was based upon an alleged “right to privacy” sup­porting the right to an abortion. The Court asserted that women have a right to abortion which is derived from a broader constitutional right to privacy which the Court has historically recognized in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.^[25] Yet Blackmun himself confessed, “the Constitution does not explicitly mention any right of privacy.”^[26]

But even if there were an explicit Constitutional right to privacy, why should this have anything to do with abortion? If abortion is wrong because it is scientifically established that it is the killing of innocent human life, the right to privacy is irrelevant. Abortions are wrong because they destroy human life.

The decision of the Supreme Court legalizing abortion was not only incorrect scientifically, legally, and morally, it was argued on extremely poor grounds in general. It is without doubt one of the worst examples of judicial activism and social engineering in this century.

Of course, the Supreme Court argued in Roe v. Wade that it had acted in society’s best interest. But history has proven beyond all doubt that this was not the result.

What are some of the unexpected results of the Supreme Court decision? The Court itself rejected “any claim that the Constitution requires abortion on de­mand” as well as the idea that a woman’s right to an abortion is absolute.^[27] Yet, these were the unexpected results. Today, abortion is a socially accepted form of birth control! There were other unexpected results as well:

First, the legalization of abortion has resulted in the killing of over 45.9 mil­lion unborn children.^[28] How unprecedented the Court’s power was can only be understood in these terms. This is the equivalent of wiping out from existence the total populations of a half dozen smaller countries.

Second, the legalization of abortion has placed millions of women in varying degrees of jeopardy. Women are subject to serious physical and psychological consequences from an abortion as we documented in The Facts On Abortion. Francis Schaeffer and former U.S. Surgeon General C. Everett Koop observe, “Abortion counselors rarely talk about physical dangers, emotional results, and psychological consequences. They seldom tell the woman what is going to hap­pen or what may be involved.”^[29] Is this fair? Is this upholding the “rights” of women?^[30]

Third, the legalization of abortion has resulted in the moral compromise of the medical profession. The Supreme Court, in effect, has denied the mandate of the medical profession to uphold the sanctity of life. In the words of lawyer Mark Belz:

When the doctor performs an abortion, his act is equivalent to murder…. Consider once again the definition of murder: purposely or knowingly, without justification, causing the death of another human being. If language has meaning, abortion is murder. But Roe v. Wade has made it legal. The entire machinery of the system of jurisprudence in America, since January 22, 1973, has been engaged to promote, protect, and preserve the carrying out of this right to kill.^[31]

Fourth, the legalization of abortion elevated abortion to a constitutional “right”, thereby making laws against abortion unconstitutional. Once the Supreme Court declared abortion a constitutional right, laws prohibiting abortion became impos­sible. Thus, “The conclusion of the Court had the effect of overturning every law in the United States that attempted to prohibit abortion.”^[32]

Fifth, the legalization of abortion potentially turned any mother against any given number of her children. Essentially, the Court assumed that whenever a conflict of “interests” exists between a mother and her future child, that they exist as “adversaries” and that the mother has the right to dispose of the child’s life should she desire. “Only when the child is not perceived as a threat to the mother does society provide him with protection and rights.”^[33] Neither the husband, boyfriend or parents may interfere with this decision in spite of their own rights concerning the child.

There are at least four other areas which illustrate the irrational nature of the Supreme Court’s decision. First, animals are now guaranteed more legal rights and protections than unborn human children. Everything from lousewort plants, orange-bellied mice and daddy-long-legs spiders have been legally protected—at sometimes immense economic costs—because of environmentalists’ concerns. Porpoises, whales, baby seals and hundreds of other animals and plants (and insects) are all protected by law. But human babies are not protected by law. The very same Supreme Court which made possible the slaughter of tens of millions of unborn human babies also stopped the construction of the $116,000,000 Tellico Dam in Tennessee merely because it might cause a three-inch fish known as the “snail darter” to become extinct.^[34]

Today we have laws regulating even the killing of stray dogs and cats; we have laws protecting all sorts of living things; we have laws preventing acts of violence or cruelty to both animals and men; but we have no such laws preventing acts of violence, cruelty and killing exercised toward unborn human beings. We can do horrible things to the pre-born that we are legally prohibited from doing to dogs or hamsters!

Second, child abuse became legal—as long as the child is still in the womb. Those parents who seriously abuse or beat their infant children are taken to jail for their crimes. But those parents who help abuse and destroy their infants in the womb are well within their legal rights. Can we logically maintain that it is morally wrong to beat a three-month-old infant to death merely because he is outside the womb while we accept the killing of a six-month-old pre-born infant merely be­cause he is still in the womb?

Third, the other legal rights of the unborn were maintained; only their right to live was rejected. In property and inheritance law, Anglo-American jurisprudence has scrupulously maintained the rights of the unborn, accepting that human life begins at conception.^[35] All of us are familiar with “wrongful death” lawsuits against persons who accidentally injure unborn children to the point of their death. “To this day, the law recognizes unborn children as persons entitled to all these rights. In fact, criminals who have assaulted pregnant women have been successfully prosecuted for murder when the unborn child has been killed. Nev­ertheless, the law regards the unborn as a non-person when a mother is willing to destroy him.”^[36]

Fourth, medical doctors were charged to both save life and to destroy it. Phy­sicians are sworn to protect life, not destroy it. Yet all laws attempting to prohibit abortion even after viability have been declared unconstitutional. Further, the Supreme Court even allows “that two doctors be present when viable infants are aborted—one to kill the baby through abortion and one to care for the infant should the first doctor fail.”^[37] If during an abortion procedure the child is killed while in the womb, no law is broken, but if that same child is removed from the womb and killed outside the woman, the physician is liable to a charge of murder.

What can be done? Until now, legislators have been able to hide behind Roe v. Wade. Their problem is one of political perception and having to face “pro-choice” intimidation and propaganda. Their problem is not scientific facts con­cerning the unborn.

Unfortunately, events to date indicate many politicians are more concerned with their own political lives rather than the lives of the unborn. Because unre­stricted abortion was the law of the land, they could argue that any attempt to legislate changes would only be struck down by federal courts. The value of the 1989 Webster decision is that this situation no longer exists. Dr. Nathanson suggests we supply these legislators with sufficient information to resist the false arguments and political intimidation of the pro-choice camp.^[38] Until the issue is decided on strictly factual, scientific and moral grounds, abortion will continue to be bandied about state by state.

What is needed is a federal statute to protect the unborn from the moment of conception in all fifty states. Their rights as persons under the Fifth and Four­teenth Amendments need to be guaranteed by a constitutional amendment. Otherwise, the state legislatures, the media, and the powerful pro-choice propa­ganda interests may continue to overrule the wishes of the majority of Americans. Constitutional interpretations can be overruled in two ways:

• by a constitutional amendment—a very difficult process
• by judicial willingness to reevaluate “judge-made law.”^[39]

The problem with the latter is that judges can revise their opinions again and again depending on a variety of social or other circumstances. The constitutional amendment, while much more difficult to implement, is the only option commen­surate to the importance of the issue involved in protecting human beings in the womb once and for all.

Notes

1. ↑ See Thomas W. Hilgers, Dennis J. Horan, Abortion and Social Justice (Thaxton, VA: Sun Life,
   1980), pp. 301-328.
2. ↑ Francis A. Schaeffer, C. Everett Koop, M.D., Whatever Happened to the Human Race? (Old
   Tappan, NJ: Fleming H. Revelle, 1979), p. 34.
3. ↑ Lawyer Cooperative, U. S. Supreme Court Reports, Vol. 35 (1974), Roe v. Wade, 410 US 113, p.
   196; 410 US 113 at 171.
4. ↑ Ibid., p. 195; 410 US 113 at 221.
5. ↑ 410 US 113 at 221-222.
6. ↑ Lawyer Cooperative, U. S. Supreme Court Reports, p. 196; 410 US 113 at 222.
7. ↑ The Subcommittee on Separation of Powers, Report to Senate Judiciary Committee S-158, 97th Congress, 1st Session, 1981, pp. 3, 11-12; cf., Landrum B. Shettles, Rites of Life: The Scientific Evidence for Life Before Birth (Grand Rapids, MI: Zondervan, 1983), p. 113.
8. ↑ The Subcommittee on Separation of Powers, Report to Senate Judiciary Committee, p. 18.
9. ↑ Lawyer Cooperative, U. S. Supreme Court Reports, p. 164; 410 US 113 at 130.
10. ↑ Ibid.; 410 US 113 at 130.
11. ↑ 410 US 113 at 160.
12. ↑ National Right to Life Educational Trust Fund, “Abortion: Some Medical Facts,” Washington,
    D.C., NRLETF, 1989.
13. ↑ Hilgers and Horan, p. 315.
14. ↑ Lawyer Cooperative, U. S. Supreme Court Reports, p. 182, emphasis added; 410 US 113 at
    162.
15. ↑ 410 US 113 at 218.
16. ↑ 410 US 113 at 156-157.
17. ↑ Shettles, pp. 9-15.
18. ↑ Ibid., pp. 36-37.
19. ↑ The Subcommittee on Separation of Powers, Report to Senate Judiciary Committee; Motion
    filed in the Supreme Court of the United States, October 15, 1971 (Re: No. 70-18 and No. 70-
    40). Titled Motion and Brief Amicus Curiae of Certain Physicians, Professionals and Fellows of
    the American College of Obstetrics and Gynecology in Support of Appellees, Dennis J. Horan
    et.al., United States District Court 1971; cf., Shettles, pp. 100-101; Lawyer Cooperative, U. S.
    Supreme Court Reports, p. 181.
20. ↑ Lawyer Cooperative, U. S. Supreme Court Reports, p. 181; 410 US 113 at 159.
21. ↑ Shettles, p. 110.
22. ↑ Ibid., pp. 110–111.
23. ↑ See notes 7 and 19.
24. ↑ Transcript available from The Ankerberg Theological Research Institute, Chattanooga, TN;
    edited for publication, emphasis added.
25. ↑ Lawyer Cooperative, U. S. Supreme Court Reports, p. 176; 410 US 113 at 152, 153.
26. ↑ Ibid.
27. ↑ Ibid., pp. 185, 177; 410 US 113 at 208, 153-154.
28. ↑ Schaeffer and Koop, p. 52.
29. ↑ See Debra Evans, Without Moral Limits: Women, Reproduction and the New Medical Technology
    (Westchester, IL, Crossway Books, 1989), p. 56.
30. ↑ Mark Belz, Suffer the Little Children: Christians, Abortion and Civil Disobedience (Westchester,
    IL: Crossway Books, 1989), pp. 23–24.
31. ↑ Curt Young, The Least of These: What Everyone Should Know About Abortion (Chicago, IL:
    Moody Press, 1984), pp. 16-18.
32. ↑ Ibid., p. 18, cf. John T. Noonan, Jr., A Private Choice: Abortion in America in the 70s (New York:
    The Free Press/Macmillan, 1979) p. 10.
33. ↑ Schaeffer and Koop, p. 210.
34. ↑ John Warwick Montgomery, “The Rights of the Unborn Children,” The Simon Greenleaf Law
    Review, Vol. 5 (1985–1986), p. 53, cf. pp. 43, 58-59.
35. ↑ Young, p. 18, cf. Montgomery, “The Rights of the Unborn Children,” pp. 25–75.
36. ↑ Young, p. 31.
37. ↑ Bernard N. Nathanson, M.D. (technical ed.), Bernadell Technical Bulletin, October, 1989, Vol. 1,
    No. 1 (Bernadell, Inc., P.O. Box 1897, New York, NY 10011), p. 1. See our When Does Life
    Begin?, pp. 83–175 for a critique of “pro-choice” arguments.
38. ↑ Grover J. Rees, “Scourge or Plot?,” National Review, August 4, 1989, p. 35.