Tag Archives: Harry Blackmun

Janet Mefferd Interview

Posted on by
Reply

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.

40 Years and Roe’s not looking any better

Posted on by
2

by Roger Resler

I discovered the writings of Francis Beckwith while doing research on the update and revision of my audio-book turned print edition, Compelling Interest. His name kept popping up in the reference section and footnotes of the materials I was reading.  Unfortunately, I did not actually get a copy of his book, or see any of his writings (other than what was quoted in other materials) until after my updated manuscript was finished. Once I began reading his materials on abortion, I was amazed at how similar our conclusions are regarding the abortion debate. Certainly some similarities are to be expected, given that we are both pro-life and both writing on the topic of abortion, but I was amazed at just how similar our thinking is. For example, on page 114 of his book Defending Life, he quotes Harry Blackmun’s fallacious argument from pity in his dissenting opinion in Webster v. Reproductive Health Services (1989) wherein Justice Blackmun attempts to illicit sympathy for the “millions of women” who have “ordered their lives around the right to reproductive choice…” but (it was believed at the time) apparently stood on the precipice of losing that right.  By this point in the book, Beckwith has already shown how such a line of reasoning is fallacious because it says nothing about whether the “right to reproductive choice” should be a right in the first place, but instead, attempts to suggest that the right should be retained since millions of women have come to structure their lives around it.

I have a habit of making notes in the margins of books I’m reading in case I want to quote something in the future. When I read Dr. Beckwith’s quotation of Harry Blackmun, I noted that “This could be parodied to Dred Scott.” I continued reading and on the next page Dr. Beckwith presents a parody of Blackmun’s logic by substituting his defense of Roe with a similar defense of Dred Scott. After several additional instances like this I reached the conclusion that Francis Beckwith and I must be twins who were separated at birth.

Given all this, it is no great surprise that I would heartily agree with his latest blog posts at The Catholic Thing website. I responded to part two of his posts. The following is a re-post of that response.

Francis Beckwith wrote:

 “What is key to understanding the third is that Blackmun concedes a symmetrical relationship between the right to abortion and the degree to which the fetus is not a person.”

“Degree” being the operative word. In theory, being a “person” or not being a person emerged as the pivotal moral factor in the abortion question during Roe v. Wade oral arguments, with even Sarah Weddington conceding that if the state could establish that a fetus is a “person” under the protection of the 14th Amendment, then she “would have a very difficult case.” (Pro-choice) Justice Stewart suggested that such a finding would render Weddington’s case “almost impossible” and Justice Blackmun wrote that Weddington’s case “collapses” with the establishment of fetal personhood. Thus, the metaphysical concept of “personhood” became the critical element that living humans are supposed to fully possess before their lives can be protected by the Constitution. This is a clear case of stacking the deck in favor of the pro-choice agenda.

It is precisely the ambiguous nature of the concept of “personhood” that was exploited by pro-choice proponents in order to facilitate the larger pro-choice notion that the decision (as to whether or not abortion is morally permissible) should be left up to each individual woman.

Ironically, with specific regard to the law, Justice Blackmun never conclusively suggested that the unborn are not persons, but rather that, according to the law, they had allegedly never been regarded as “persons in the whole sense.” The implication being that even if they were in some sense “partial persons” they were still not “whole” persons. This, of course, logically raises the question of how much “personhood” is required before one’s pre-existing life can be protected by the law; a question that can only be answered subjectively since personhood cannot be measured.

The debate over fetal personhood was therefore an ad hoc response specifically designed to facilitate the desire for abortion on request; a desire that had grown out of a larger desire to avoid moral responsibility to one’s own offspring. We would not be debating fetal “personhood” 40 years after Roe v. Wade, had there not previously existed a desire for legalized abortion on request

More from Amplify: the religious fallacy

Posted on by
Reply

by Roger Resler

Continuing with my responses to “10 Arguments in Favor of Pro-Choice Policy” from Amplify Your Voice.com:

7. Religious ideology is no foundation for any law. Freedom of religion is guaranteed to any citizen in the United States; so why would the beliefs and values of one religion mandate actual laws for all citizens? It would be unfair, unjust and immoral. We do not have laws against eating fish, nor do we have laws that declare it is legal to sell one’s daughter, rape someone, or keep a person as a slave—all things that are promoted in religious text.

This argument will receive special attention. I apologize in advance for the length of this post. This is one of my pet peeves. It is an especially egregious falsehood because it is doubly wrong. It falsely accuses its opposition of what it is guilty of itself.

Ironically, pro-choice proponents are rarely challenged on their hypocritical use of this argument, despite resorting to it often.

Let’s start with the silly stuff first. Amplify suggests that:

“We do not have laws against eating fish, nor do we have laws that declare it is legal to sell one’s daughter, rape someone, or keep a person as a slave—all things that are promoted in religious text.”

No pro-life leader or organization promotes or propagates these things which explains why Amplify doesn’t support this allegation with citations. To blithely declare that these are all “things that are promoted in religious text” is a dishonest attempt to associate pro-life people with archaic and barbaric practices that have nothing to do with a pro-life position. This  argument is patently dishonest on its face and should be abandoned.

Such tactics will likely backfire since the real hypocrisy of painting one’s opponents in a false light is difficult to conceal.  Why the need to define one’s opposition as something they are not? I suspect it’s because the actual reasons for being pro-choice aren’t very good reasons.

On to the more important allegation.

Amplify suggests that a good reason to be pro-choice is that “Religious ideology is no foundation for any law.” In the first place, the assertion is simply false. Whether or not pro-choice proponents approve, laws in western culture have been founded on the Judeo-Christian ethic and go back to the Ten Commandments.

But the more important point is that the implication that being pro-life is unequivocally religious is also false. While many pro-life people are religious, it is a mistake to assume the pro-life position is inherently religious or necessarily bound to religious ideology, much less that of a specific religion. It is not. Ultimately the pro-life position is based on observable biological data; whereas the pro-choice position rests on controversial, metaphysical dogma. Yet the pro-choice community is fond of claiming that science is on its side in a battle with the “religious right.” Nothing could be further from the truth.

Here is a classic example of pro-choice deception from the Pro-choice Action Network of Canada:

Personhood at conception is a religious belief, not a provable biological fact.

Religious communities have differing ideas on the definition of “person” or when abortion is morally justified. In the Canadian courts, however, a fetus has consistently been found not to be a person with legal rights. – PCAN, Canada

Notice how the burden of proof regarding the ambiguity of personhood is implied to lie with the pro-life community? Personhood, whether beginning at conception or not, is indeed “a religious belief, not a provable biological fact” (!) but the pro-life position does not rest on it! The pro-choice position does! Unfortunately, this backwards reasoning has become widely accepted to the point where it is now being taken for granted by many people.

Amplify suggests that, “It would be unfair, unjust and immoral” for the law to be founded on “the beliefs and values of one religion.” In a pluralistic society that might be true if the law required something out of the ordinary for purely religious reasons, such as making it illegal not to recite a certain number of Hail-Mary’s. That would be an unacceptable form of religious imposition. But the same religion that believes in reciting Hail-Mary’s also promotes the idea that murder is wrong or that stealing is wrong. Should we eliminate laws against murder and stealing because religious people who recite Hail-Mary’s believe it is wrong to murder and steal? Of course not.

What is ultimately “unfair, unjust and immoral” is to kill innocent human life. Atheists can agree with that assertion. So then, the relevant question becomes: does abortion kill an innocent human life? Without question, the answer is yes. There is no disputing this; at least not rationally.

Instead, what most often occurs is that pro-choice proponents attempt to separate the metaphysical concept of “personhood” from the tangible reality of a living human being. Without scientific support (as admitted by the Canadian article just cited), they suggest that the concept of being a “person” is the critically absent factor in a living human fetus that justifies abortion on demand. Abortion is perfectly acceptable, they inform us, because the fetus is not yet a “person.” Well there you go! Moral conundrum solved! All we need to know is when does a fetus become a “person” and the abortion controversy is history! So when, according to brilliant pro-choice thinkers, does that magical point occur? Answer: They don’t know and can’t agree. The result is that the answer varies depending on whatever point happens to suit their purposes at the moment. For Sarah Weddington, arguing in Roe v. Wade, the magical point occurred at birth. Justice Blackmun, writing the majority opinion, was much more ambiguous, suggesting that viability – which is not really a point – had more significance.

However, by noting in Roe v. Wade, that “the unborn have never been recognized in the law as persons in the whole sense,” pro-choice Justice Blackmun inadvertently implied that the unborn are at least persons in a partial sense.

This is an amazingly tenuous line of reasoning. In the first place, it can’t be demonstrated that such a thing as a “human non-person” exists in reality, yet Roe v. Wade collapses if not. To make matters worse, Justice Blackmun implies that “personhood” might be acquired by humans in degrees. Extending the benefit of the doubt to this wild speculation begs the question of how much “personhood” is required in order to justify laws against intentional destruction of actual human fetuses? This, in turn, raises the absurdity of how to measure quantities of “personhood.”

Any answer is, of course, arbitrary and subjective. Not surprisingly, Justice Blackmun didn’t attempt an answer. As a consequence, pro-choice proponents rest their logic on the unproven and unprovable, metaphysical dogma of “personhood” in order to justify the position they take on abortion – ironically the very thing they falsely accuse pro-life proponents of doing. The concept of “personhood” becomes critical to the morality of their position – but not the pro-life position!

The pro-choice crowd, aided by the power of the media, Hollywood and academia has legitimately hoodwinked the public on this point for forty years! We’ve bought into the ridiculous notion that the pro-life position depends on the twisted logic that was developed by pro-choice proponents in an effort to bring their own desired position closer to some semblance of coherence. It doesn’t. “Personhood” is the mess created by Sarah Weddington, Justice Harry Blackmun and their pro-choice disciples. It’s their bed. They have to sleep in it. Not pro-lifers.

The problem for pro-choice proponents is that personhood is an inherently metaphysical and subjective idea developed with fluctuating and arbitrary criteria that can’t even be universally agreed upon among pro-choice proponents. For example, radical philosopher Michael Tooley thinks that born babies aren’t persons until they acquire the ability to have “interests.” One-upping Tooley in the race of philosophers-gone-wild are Alberto Guibilini and Francesca Minerva who argue for what they casually refer to as “After-birth abortion.” The abstract from their 2011 Journal of Medical Ethics article says it all:

Abortion is largely accepted even for reasons that do not have anything to do with the fetus’ health. By showing that (1) both fetuses and newborns do not have the same moral status as actual persons, (2) the fact that both are potential persons is morally irrelevant and (3) adoption is not always in the best interest of actual people, the authors argue that what we call ‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled.

After the initial jolt, incredulous observers suspected a devious pro-life attempt at parody in this unusually sterile defense of premeditated, postnatal murder. Yet these philosophers were chillingly serious. In a classic case of pathological lack of empathy, the pair weren’t terribly concerned with whether or not the tangible, living newborn has any actual “interests” (like continuing to live) but whether he or she is capable of cognitive awareness of any interests he or she might possess:

We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her.

Having moved sufficiently beyond the suddenly dangerous neonatal stage themselves, Guibilini and Minerva retroactively define and then arbitrarily deny their younger peers “moral status as actual persons” while also candidly admitting “it is hard to exactly determine when a subject starts or ceases to be a ‘person.'” Undaunted by the difficulty of pinpointing the presence of personhood (as they define it) and the annoying moral implications accompanying the resulting ambiguity, they, nonetheless, reason that since neither newborns nor fetuses possess this elusive but critical quality (or at least, one presumes, a sufficient amount of it) then “killing a newborn” is perfectly acceptable.

Shocking as this rightfully should be, this is exactly where pro-choice logic leads. Guibilini and Minerva may advocate barbarity, but at least it’s logically consistent barbarity.

One can sympathize with the unexpected dichotomy this forces onto unsuspecting pro-choice laymen who’ve mindlessly parroted the religious fallacy for decades as though it somehow supports their decision to be pro-choice. Perhaps inadvertently, or perhaps not, Guibilini and Minerva substantiate the pro-life assertion that there is no significant moral difference between a human fetus and a human baby:

In spite of the oxymoron in the expression, we propose to call this practice ‘after-birth abortion’, rather than ‘infanticide’, to emphasise that the moral status of the individual killed is comparable with that of a fetus (on which ‘abortions’ in the traditional sense are performed) rather than to that of a child. Therefore, we claim that killing a newborn could be ethically permissible in all the circumstances where abortion would be.

Overlooking the nonsensical notion that a “newborn” could be “the individual killed” while simultaneously not a “child,” Guibilini and Minerva at least candidly acknowledge what other pro-choice proponents have emphatically denied since Roe first rolled off the presses: that a human fetus and a human baby are essentially the same thing from a moral standpoint.

The unintended upshot is that there is no longer any logical way to remain pro-choice without either resorting to arbitrary, metaphysical ideas that are contradicted by common sense or venturing into full-scale barbarism. Either abortion on demand is acceptable because there is something radically, morally different about the human in the womb as contrasted with a newborn (metaphysical concept), or there is no demonstrable moral difference but pro-choice proponents want the freedom to kill it anyway (barbarism) whether inside the womb or not.

Of course Guibilini and Minerva merely suggest that the magical point at which a sufficient amount of personhood is obtained occurs sometime after birth. Such theorizing illustrates the inherent problem with the “personhood” standard in the first place.

There is no question that humans in the womb are human. Humans can only reproduce other humans. There is no question that humans in the womb are alive. If abortion does not kill the occupant of the womb then pregnancy continues – which makes the debate over when human life begins an irrelevant side show. It doesn’t matter when human life begins since it obviously already began at some point before an induced abortion is required to kill it.

Pro-choice proponents tell us it’s okay to kill the living human in the womb because it either does not kill a “person” or it does not kill a “person in the whole sense” (they can’t agree on which). It’s time we challenge the purveyors of this metaphysical nonsense to conclusively prove it using the scientific method. No philosophical drivel. No semantic word games. No legal loopholes. Just documented, peer-reviewed, repeatable observation. Good luck with that.

It is the obligation of those who wish to retain the right to intentionally destroy human fetuses, under the moral assumption that they are not “persons,” to conclusively demonstrate the correctness of that critical premise of their argument.

Until then, pro-life people and independents who haven’t fallen for pro-choice propaganda will work to pass laws under the reasonable assumption that the pro-choice dogma of “personhood” is an unacceptable religious imposition designed to benefit one group of humans at the expense of another more vulnerable group of humans.

Roger Resler is an author, researcher & media producer for Truth In Depth Productions.

Good reasons to be pro-choice?

Posted on by
1

by Roger Resler

For this post and several future posts I will respond to pro-choice arguments presented on a website called Amplify Your Voice. I welcome comments and feedback from anyone so long as they stay within the “good exchange of ideas” realm. Fair warning: as the unimpeachable blog dictator, I will mercilessly exercise omnipotent control over content on this site. Essentially, if I like your comment, it will see the light of day. If not, it will be forever banned to outer darkness (followed by maniacal laughter). So… with that in mind, let’s get started.

The voices wishing to be amplified at Amply Your Voice.com are no doubt backed up by sincerely held beliefs. The problem is, “sincerely held” does not necessarily equate to rational. Case in point:  “10 Arguments in Favor of Pro-Choice Policy.” Let’s begin with the first point which is actually #10:

10. Laws against abortion do not stop abortion; they simply make it less safe. The number of women who get abortions does not change when it goes from being legal to illegal, or vice versa. The only thing that changes is more women die. Every year, 78,000 women die from unsafe abortions.

With all due respect, this is propaganda. The 78,000 figure is cited with no supporting data, but it’s interesting to note that Amplify is claiming this number while abortion is legal. If legal abortion is safe (for the mother) and abortion is currently legal, then why are 78,000 women dying from abortion “every year” according to Amplify?

In 2006 I had a phone conversation with ex-abortionist turned pro-life advocate Dr. Bernard Nathanson who stated that the popular pre-Roe figure of 10,000 annual maternal deaths was simply manufactured out of thin air by the pro-choice community (of which Nathanson was then an active participant). The truth is no one knows how many illegal abortions took place (for the obvious reason that no one was reporting illegal abortions) but the pro-choice “estimate” of abortion related maternal deaths has now obviously inflated by a factor of 7.8! This is an absurd number; useful only for pro-choice propaganda.

Although we don’t know how many illegal abortions took place, we do have a reasonable estimate of how many maternal deaths were attributed to illegal abortion in the years leading up to Roe.

According to the National Center for Health Statistics, there were roughly 1,350 such deaths in 1941. Due to the introduction of Penicillin in the 1950’s the figure had dropped dramatically to less than 200 by 1965 and continued to drop to under 50 by the time Roe v. Wade was argued. Did you catch the disparity? Those interested in keeping abortion legal are now casually claiming that 78,000 maternal deaths occur annually due to illegal abortions, when, in reality, the number was well under 50 by the time Roe was argued!

“Law’s against abortion do not stop abortion.”

Obviously true. Hardly surprising. Laws against speeding do not stop Mario-Andretti-wanna-be’s from flying past me on the freeway.

Laws against murder have not put serial killers out of business. If we could stop vice simply by passing laws, then we should be living in utopia.

“The number of women who get abortions does not change when it goes from being legal to illegal, or vice versa. “

This is where a “my-stats-are-better-than-your-stats” tit-for-tat begins – except that Amplify provides no stats to support their claims. I deal with this topic in my book Compelling Interest (which will be released in the Fall of 2012 – the link, by the way, is for an earlier version audio book). It comes down to whose stats are we going to believe?

In his exhaustive book, Dispelling the Myths of Abortion History, (Carolina Academic Press, 2006) Villanova law professor Joseph W. Dellapenna methodically shreds this and other abortion myths that have been promoted as fact by the pro-choice movement for decades. Dellapenna’s research demonstrates that the modern origin of many of these now popular abortion myths goes back to the pro-abortion-agenda-driven research of a New York University law professor named Cyril Means Jr.

Over the course of more than 1,200 pages, Dellapenna shows that Means’ research was “seriously deficient even based on the evidence Means himself presented.” (Dellapenna, p. xi) Factual inaccuracy did not stop Sarah Weddington from relying heavily on Means’ research, however, in her pro-abortion arguments before the Supreme Court in Roe v. Wade. And it also did not stop Harry Blackmun from perpetuating Means’ errors as he wrote the Roe majority opinion.

Obviously numbers are easy to inflate and the pro-choice community has been busily inflating.The important question is: does society wish to promote abortion as a public good which should be legal? Most people agree that at best abortion is a necessary evil. The debate becomes a matter of: when is it necessary?

The way Amplify frames the issue is revealing: “Laws against abortion do not stop abortion; they simply make it less safe.” While the actual number of maternal deaths is much lower than Amplify would have us believe we should keep in mind that abortion is never safe for the unborn child.

The idea that laws force women into back alleys is also flawed. Women choose to have abortions. They are almost never forced, and certainly not by anti-abortion laws.

Do we create laws against abortion in the hopes that more women will die from illegal abortion? Of course not. The hope is that women will be discouraged from participating in abortion because society is saying abortion on demand is morally unacceptable, just like murder is morally unacceptable.

Well, I’ve managed to answer only one of Amplify’s 10 points. Thanks for bearing with me. I will continue with the second point on my next blog entry.

Roger Resler is an author, researcher & media producer for Truth In Depth Productions.