Posted on May 30, 2003
The Tangled Web of Roe
Pro-aborts haunted by evasive past
by
Daniel Clark
Abortion advocates are afraid of the Unborn Victims of Violence Act (UVVA) now being put before Congress, and for good reason. The bill, which passed the House previously in 1999 and 2001 but was never taken up by a Democrat-controlled Senate, would make it a federal offense to kill an unborn child during a violent crime against its mother. Now that the Republicans control both houses of Congress as well as the presidency, the measure is likely to pass into law.
The bill would not apply to an abortion, to which the mother would have consented, but would recognize an unborn baby as a second victim when its mother is assaulted. Someone who is naive about the agenda of the feminist movement might expect activist groups that once supported a piece of legislation called the Violence Against Women Act to jump at the chance to increase penalties against men who assault pregnant women, but they're not. Especially galling to them is the fact that Congress has renamed the bill after murder victims Laci Peterson and her unborn son Conner. "Shameless exploitation of a horrific tragedy," shrieked NARAL president Kate Michelman. "It sickens me."
It is doubtful that Michelman would ever accuse Laci Peterson's family of exploiting the grisly double murder, but that is the effect of her thoughtless statement, because it was the Rocha family (Laci's maiden name) who suggested the title change to the bill's sponsors, Rep. Melissa Hart (R, Pa.) and Sen. Mike DeWine (R, Ohio). According to the letter, which was signed by Laci's mother, father, stepfather, brother and two sisters, "When we heard about this bill, we immediately thought of placing a request to have it named Laci and Connor's Law in their memory. Knowing that perpetrators who murder pregnant women will pay the price not only for the loss of the mother, but the baby as well, will help bring justice for these victims and hopefully act as a deterrent to those considering such heinous acts."
When this same bill was debated two years ago, Rep. Zoe Lofgren (D, Calif.) responded by proposing an alternative that could subject assailants of pregnant women to life sentences in prison, without acknowledging the existence of a second victim. "We can protect women from violence without opening the Pandora's box of the abortion debate," she said. This ignores the reality of the issue completely. It is already illegal to assault a woman. What the UVVA says is that a pregnant woman and her child are two people, each deserving of legal protection. Lofgren's counterproposal is that the state of being pregnant does not involve the existence of a child at all, but that a pregnant woman by herself should be valued more than other people by law. Nevertheless, she entitled it the "Motherhood Protection Act of 2001." In her surreal feminist fantasyland, a woman who is pregnant has become a mother, yet she has no child.
What Michelman, Lofgren and others fear is that the law's recognition of life before birth will shatter the synthetic legal constructs upon which the prevailing abortion jurisprudence was built. NARAL warned its members of this in a January 17th "fact sheet," which laughably began, "Roe v. Wade carefully balanced the rights of women and the developing fetus." Notice that it doesn't refer to actual "developing fetuses," but instead turns them into an abstraction. The rest of the deception is far less subtle. When the Supreme Court concocted a "right" to abortion in Roe v. Wade, it said that the states could ban second and third-trimester abortions, except in cases when the woman's "health" is endangered. In the Doe v. Bolton case which it decided concurrently, it defined "health" in the context of the abortion issue as including "all factors -- physical, emotional, psychological, familial and the woman's age -- relevant to the well-being of the patient." Since this definition encompasses every scenario imaginable, it means that abortion is actually legal in all fifty states, through all nine months of pregnancy. It seems that NARAL perceives "balance" in the same way as the news networks that parrot its press releases.
NARAL goes on to argue that the "UVVA equates zygotes, embryos and fetuses with people for legal purposes, putting UVVA in tension with Roe v. Wade." This is so because, as the next bullet point says, "Roe holds that a fetus is not a 'person' for purposes of the Fourteenth Amendment to the Constitution." While this is an accurate paraphrasing of one statement from Justice Harry Blackmun's majority opinion, it only reflects a fraction of the truth about the case, because Blackmun himself contradicted this point in that very same decision.
Blackmun put the onus on the Constitution to state specifically that the term "person" applies to the unborn, and then observed that it never does that. "All this ... persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn," he wrote. The logical flaw in this is obvious. The mere fact that the Constitution does not plainly state that X is true cannot be taken to mean X is not true.
Elsewhere, in recognizing claims to a Ninth Amendment right to abortion, Blackmun makes a similar error, but in reverse. "Ninth Amendment rights" are seldom referenced, for the simple reason that no such things literally exist. That amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." All this means is that a lack of mention of a right in the Constitution cannot be used as evidence that it does not exist. But the argument accepted by Blackmun is that a Ninth Amendment "right to privacy" must exist precisely because the Constitution makes no mention of it. In other words, he figured that because the Constitution does not say not X, then X must be true.
The seven justices who legalized abortion read the Constitution in such a way that it meant anything they wanted it to. They imagined that a particular living member of the human species must not be a person, just because the Constitution doesn't explicitly state that it is. They felt it was clear, however, that there is a constitutional right to abortion, because it is one of the freedoms encompassed in the "right to privacy" which the Constitution never declares does not exist.
Athough Blackmun stated with certainty at one point that a human fetus cannot be a "person," at another, he left open the possibility that this could be proven wrong. "If this suggestion of personhood is established," he wrote, "the appellant's [counsel for Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment." He quickly dismissed this, however, by pointing out, "On the other hand, the appellee [counsel for Texas] conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment." What Blackmun tried to do through this vacillation was to chisel the word "person" into two separate words: one in English, and one in legalese. His decision relies on the legalese word, whose meaning is solely dependent on judicial precedent.
As if to amplify his rejection of the actual definition of "person," Justice Blackmun asserted later in this same opinion that, "We need not resolve the difficult question of when life begins." Of course not. When discerning what constitutes a "person," who needs to be hassled with trifling questions like "when does life begin?" Besides, the Fifth and Fourteenth Amendments both mention "life," but neither of them pinpoints its origin. Following the Court's reasoning in regard to "person," this could be taken to mean life never begins.
Herein lies the problem that the Unborn Victims of Violence Act poses for abortion advocates. Roe v. Wade is often called "the law of the land," but it isn't a law, nor is it based on one. The public never got a chance to analyze and debate this "law" before it was enacted, so its outrageous details remain largely unknown. Now, an actual piece of legislation has been introduced, which states unambiguously that a human fetus is a person. How can this be? Doesn't it violate "the law of the land"? Not according to NARAL, which only says that the UVVA is "in tension with" Roe.
The reason NARAL doesn't say the bill directly contradicts Roe is because that would raise the obvious question of a Supreme Court challenge, and they don't want that. When the UVVA was approved by the House in 2001, Kate Michelman warned, "The act is part of a concerted effort to capitalize on the anti-choice presidency of George W. Bush. Anti-choice lawmakers know that now is their chance to enact sweeping restrictions on choice and lay the groundwork for an eventual challenge to Roe." Her fear is not unfounded. She knows that for the Court to consider a challenge to the UVVA, it would have to open up Roe and confront all its contradictions and logical incongruities.
The UVVA is written to protect, "a member of the species Homo Sapiens, at any stage of development, who is carried in the womb." The justices on today's Supreme Court would have to hold this description up against Justice Blackmun's explanation that these creatures are definitely not people, although they may yet be proven to be, but we don't really need to know whether they are or not. Unless the majority were willing to tie their reputations to such drivel, they would create a precedent recognizing the existence of unborn people. This would mean that, by Blackmun's own admission, the unborn would be protected under the Fourteenth Amendment.
Any legislative attempt to proscribe an abortion procedure is likely to be rejected by the Court as a violation of the "right to privacy" it invented decades ago, but that doesn't enter into the UVVA. Even a pro-abortion judicial activist would have a hard time arguing that an assailant had a right to "privately" kill an unborn baby during an attack against its mother. For the first time, a Supreme Court case would focus primarily on the question that Blackmun said didn't matter. Once that faulty premise is pulled out of Roe, the rest of the ruling would unravel like the cheap fabric it is.
So this is the conundrum in which pro-abortion activists find themselves. They won't sit idly by and watch the passage of a law that would protect unborn children, but if it passes, they'll be afraid to challenge it in court. That may leave nothing else for them to do but the one thing they do best -- making lots of hollow noise.
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