Roe v. Wade, Part II

Legal Chicanery

The Supreme Court of the United States refused to recognise certain vital principles when they decided that abortion was "constitutional".  Amongst these was the refusal to decide on the humanity of the unborn child.  The Court thus adopted a profoundly agnostic stance on the essential ethical issue.  Moreover, according to Harold O J Brown the Court also chose to ignore whether the Constitution and the Bill of Rights recognise a human being's right to life.  There is no doubt the Court chose the course of intellectual elision and dishonesty in this most devastating of decisions. 

But, in deciding that abortion was OK, ethical, and morally upstanding the Court did have some recourse to some positive moral standards.  It ruled that the unborn child could be protected by law if he or she had the "capability of meaningful life".  This is a vague term, but presumably the Court meant by "meaningful", the ability to survive outside the womb. 

Now the brute reality is simple: no newborn child has the ability to survive without the care and assistance of others.
  The new born child cannot stroll to the refrigerator, select some ingredients, cook up a meal, eat it and thrive.  Someone else has to nurture, feed, provide, care and protect the child.  Therefore, it is the capability of survival, albeit with the help of others, that is the critical issue when determining whether the child's life is meaningful.

Yet, even so, the criteria remain subjective.  Who determines "meaningfulness" and "capability"?  How does a child suddenly inherit meaningfulness and capability when outside the womb, whilst a few minutes before the child lacked those things?  The answer is that someone else subjectively decided so.  Professor Brown refers us to the case of Dr Bernard Nathanson

. . . one of the founders of the mammoth New York abortion facility, the so-called Centre for Reproductive Health--a nice 1984 name for an abortion clinic--wrote in an interesting paper, "Abortion Reconsidered," that he had recognized after a number of years that he had participated in 60,000 deaths.  This was beginning to pray on his mind.  Dr. Nathanson wondered how long he would survive in New York City without an artificial aid, his glasses.  His question is legitimate.  "Capability of meaningful life" apart from artificial aids is something taht not many of us could claim, at least at not all periods of our life.  [Harold O J Brown, "Legal Aspects of the Right to Life," The Christian Case Against Abortion: Thou Shalt Not Kill, edited by Richard L. Ganz (New Rochelle, New York: Arlington House Publishers, 1978)  p. 119f.]

Thus, the Supreme Court's decision turned upon ignoring the big issues--the prohibition of doing any harm, whether the unborn child was a human being, and whether there was a fundamental right to life in the Constitution and the Bill of Rights--and instead focused upon subjective principles (capable of meaningful life) and sophistry (the majority view is Christian, therefore sectarian, therefore inadmissible). 

Than came that canard of all canards--the discovery of a "Right to Privacy".  We will deal with this in the next piece.