Tip of the month – Living the culture of life
Excerpts from The Winning Side by Charles E. Rice
After declining to decide whether an unborn child is a living human being, the Supreme Court ruled that he is not a person, since the “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Regardless of whether he is a human being, he is not a person. This ruling is the same, in effect, as ruling that an acknowledged human being is a nonperson. As a nonperson, the unborn child has no more constitutional rights than does a goldfish or a turnip.
Once the Court ruled out the rights of the unborn nonperson, the only right remaining was the mother’s right to privacy. While asserting that this right is not absolute, the Court defined it so as to permit, in effect, elective abortion at every stage of pregnancy up to the time of normal delivery. According to Roe, even after viability, when the state may regulate and even prohibit abortion, the state may not prohibit abortion “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” The health of the mother includes her psychological as well as physical well-being. And “the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the mother. This is equivalent to a sanction for permissive abortion at every stage of pregnancy.
The essential holding of Roe is that the unborn child is not a “person” within the meaning of the Fourteenth Amendment, which protects the right to life of persons.
But, you ask, hasn’t the Court retreated from its holding in Roe? Not really. Since 1973, the Court has upheld marginal restrictions on abortion, such as a requirement that abortions be performed by physicians. In 1992, in Planned Parenthood v. Casey, the Court upheld Pennsylvania requirements that the woman be given information about abortion 24 hours before the abortion; that a minor have the consent of a least one of her parents, or the approval of a judge, before she can have an abortion; and that abortion facilities comply with record keeping and reporting requirements. But the Court struck down a requirement that the woman notify her spouse before the abortion.
The Court in Casey described the woman’s right to an abortion as a “liberty interest” protected under the Fourteenth Amendment rather than as an exercise of the right to privacy. “[L]iberty as conceived in Casey is broader than privacy as conceived in Roe. But the shift has significant substantive ramifications as well … Abortion as privacy, for instance, means that women are protected against governmental intrusion but can make no claim to governmental assistance. Abortion as a liberty issues, on the other hand, permits a broader understanding of abortion that more accurately reflects the multiple meanings of reproductive rights … By identifying abortion as part of a more general liberty interest, the Court raised the stature of the abortion decision.”
In 1997, the Court described its Casey ruling as follows: “There, the Court’s opinion concluded that ‘the essential holding of Roe v. Wade should be retained and once again reaffirmed.’ We held, first, that a woman has a right, before her fetus is viable, to an abortion, without undue interference from the State, second, that States may restrict post viability abortions, so long as exceptions are made to protect a woman’s life and health; and third, that the State has legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child.”
Although the Court allows marginal restrictions on abortion, the Court will not allow the states to enact any effective prohibition of abortion at any stage or pregnancy. The Court requires that the states allow abortion for emotional as well as physical health even up to the time of normal delivery. The Court has also imposed sever restrictions on pro-life activities at abortion sites.