The article “It’s up to women to protect their rights” made the following assertion: “[Roe v. Wade] helped reaffirm the basic right that disallows government intervention in personal matters, which is a fundamental necessity for a functioning democracy.” What is necessary for a functioning democracy is good legal practice. Roe v. Wade was monumental in its disregard for accepted legal practice.
A decision is universally held to be “legally correct” in the United States if the decision is based on established legal precedent and is derived from the Constitution. The Supreme Court acknowledged this, citing ancient history, English and American common law and the Constitution and its Amendments.
Regarding ancient history, the Roe v. Wade court stated the following: “Abortion was practiced in Greek times, as well as in the Roman Era,” and that “it was resorted to without scruple.” The Supreme Court dismissed the testimony of the prominent medical historian, Arturo Castiglioni, whom the Court actually cites earlier in the case. Castiglioni states that Roman law punished abortion, definitely from the time of Augustus, and probably before.
In many medical cases, legal precedent turns to the accepted standard for the morality of medical procedures, the Hippocratic Oath, which states, “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.”
In the U.S., English and American Common Law were investigated. The Court said of common law: “Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed…it now appear[s] doubtful that abortion was ever firmly established as a common-law crime.”
Although it cites the works of Bracton, an accepted common law commentator of the 13th century, it ignores his words, “If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the foetus is already formed or quickened, especially if it is quickened, he commits homicide.”
Moreover, the court cites Eugene Quay to support its assertion that the states did not have any legislation prior to the Civil War. Quay has, however, an appendix detailing the statutes on abortion in all states and territories, which states that “a full 31 of the eventual 50 states had statutes punishing abortion before the Civil War.”
The Court’s view of “personhood” in light of the Constitution is that no reference to personhood “has any possible pre-natal application.” Indeed, the word “person” appears many times with no obvious application to the unborn. Yet, establishing that “personhood,” as used, has no clear “pre-natal application” does not mean that the unborn are excluded from the rights of the Constitution. The Court cites Articles I and II, the Migration and Importation Clause and the Emolument Clause. Every single clause cited by the Court excludes the unborn, but each one alternately excludes a 17-year-old, an Indian who does not pay taxes and an American born in England!
The justices of the Supreme Court made a number of critical mistakes in their analysis of abortion, ignoring ancient law and natural law, misinterpreting legal precedent and manipulating the Constitution.
Amber Kaderbek is a junior majoring in aerospace engineering.
