by Roger Resler
January 22nd marked the 43rd Anniversary of one of the worst Supreme Court decisions of all time: Roe v. Wade. Nationally syndicated talk show host Janet Mefferd interviewed Dave Sterrett and me on that day. Listen to the podcast here.
It’s been quite a while since I’ve been interviewed live and it was a challenge to boil long answers down to quick responses. (Meaning: I failed miserably). In fact, I was cut off in mid-thought twice because we were up against breaks. What made matters worse is the fact that I could not hear the music rising in the background – which is the usual cue to wrap it up – so I simply kept talking!
The point I was trying to make the first time was that a key argument by Sarah Weddington in Roe v. Wade was that the anti-abortion laws that had come on the books in the late 1800’s (one of which – the Texas law – was the one Weddington was attacking) had only come on the books out of a concern to protect women from the dangers of abortion in the 1800’s. There was a partial truth to this argument since abortion, in the days prior to antiseptics, certainly was a dangerous undertaking for the pregnant woman. But Weddington was dealing in half-truths. In reality, the primary reason anti-abortion laws, like that of Texas, came on the books was a concerted effort to protect unborn human life. Ironically, even Justice Harry Blackmun, author of the Roe decision, openly (yet somewhat covertly) acknowledges this in the majority opinion!
Although buried in the midst of dry, legal ramblings, anyone who cares to take the time to look can still find this pro-life acknowledgment under the heading: “The Position of the American Medical Association” beginning on page 141 of the Roe majority opinion.
Prior to the mid 19th century, in the United States, English common law had prevailed. In general, abortion was considered a serious misdemeanor prior to “quickening” (the point in pregnancy when the mother first feels the baby move – which is generally around 17 weeks), and a felony after. Weddington ignored the fact that abortion after quickening had, for centuries, been a serious offense (even capital in some cases), and while Blackmun acknowledges it, he nevertheless tended to downplay the significance.
In the mid 1800’s, after fertilization in mammals began to be observed due to the improvements of microscopes, medical doctors became increasingly aware of the deficiencies of abortion laws that were based on the archaic notion of quickening. As Blackmun freely admits, these pro-life doctors began lobbying legislators to update the laws. As a result the quickening based abortion laws were replaced with even stricter laws nationwide. Many of these laws, like that of Texas, allowed for no exceptions other than a life-threatening situation for the mother.
So a key premise in Weddington’s arguments in Roe v. Wade was, at best, erroneous.
The second point I was attempting to make when time again ran out, was that the Texas attorneys who were arguing the pro-life position, were not well prepared and fell into the trap of arguing for “personhood” at conception instead of focusing on the biological beginning of human life. In short, they simply suggested that a fetus is a person because the state of Texas says so. This was obviously not a satisfactory argument for the pro-choice majority of Justices in Roe, who, ironically, ended up arguing the same way – only in reverse – by holding that a fetus is not a “person in the whole sense” because the Supreme Court says so. Unfortunately for millions of unborn humans, the say-so of the Supreme Court trumped the say-so of Texas.