Novel Inventions of Abortion Law

[In Part 2 of 7, we’ll look at the next section of Francis J. Beckwith’s paper, “The Supreme Court, Roe v. Wade, and Abortion Law.”]

Beckwith’s second large section is titled:

II. How the Court Found a Right to Abortion

The wording here is choice: the Supreme Court of the United States had to prod, dig, and search to produce a “right to abortion” in their Roe decision. Here’s why: the Court had to eliminate two huge impediments to interpreting the “right to privacy” for birth control from from the Griswold case to include abortion (see p.42). Those two impediments were the long-standing, near-omnipresent US laws protecting the unborn and the constitutional rights given the unborn under the Fourteenth Amendment.

Therefore, in order to legalize abortion, the SCOTUS had to prove that such a “right to privacy” does include abortion and that the unborn is not a person under the Fourteenth Amendment. Blackmun started with ideologically misreading the history behind anti-abortion law:

  • Justice Blackmun differed on the purpose of prior anti-abortion laws: “According to Blackmun, the purpose of these laws, almost all of which were passed in the nineteenth century, was not to protect prenatal life, but rather, to protect the pregnant woman from a dangerous medical procedure,” (p.44).
  • Blackmun reframed common law history in his own terms: “Blackmun argues that under the common law’s framework, prior to the enactment of statutory abortion regulations, abortion was permissible prior to quickening and was at most a misdemeanor after quickening. Therefore, Justice Blackmun claims that because abortion is now a relatively safe procedure, there is no longer a reason for its prohibition. Consequently, Justice Blackmun asserts that given the right of privacy, and given the abortion liberty at common law, the Constitution must protect a right to abortion,” (p.44).
  • Blackmun changed the timeline: Though the Roe majority decision outlines historical laws concerning abortion, “Blackmun’s historical chronology is ‘simply wrong,’ because [contrary to his own timeline, ed.] twenty-six of the thirty-six states had already banned abortion by the time the Civil War had ended,” (p.45).
  • Blackmun was later exposed: “Justice Blackmun’s history (excluding his discussion of contemporary professional groups: AMA, APHA, andABA) is so flawed that it has inspired the production of scores of scholarly works, which are nearly unanimous in concluding that Justice Blackmun’s “history” is untrustworthy and essentially worthless,” (p.45).

US Supreme Court convention requires that judges research and consider prior case law, particularly those that set legal precedent, before handing down their own decisions. In this case, Blackmun and the majority judges co-opted a clear history of anti-abortion laws at the state level, as we will see next time.

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    About B Treece
    loved by God before I ever loved Him, saved by grace alone through faith alone in Christ alone by the authority of the Bible alone to the glory of God alone, made to enjoy Him forever, happily married with wonder-filled children.

    2 Responses to Novel Inventions of Abortion Law

    1. Pingback: Is the Unborn a 14th Amendment Person? | Your Cross on My Back

    2. Pingback: Legal Principles Have Universal Applications | Your Cross on My Back

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