January 22, 2013

Maybe, Maybe Not: Reflecting on Roe 40 Years Later

Forty years ago today the Supreme Court handed down it's decision in the landmark case of Roe v. Wade making abortion-on-demand a constitutionally guaranteed right in every state. I've always been pro-life (my parents left me no choice), but I've never before read the Court's decision in this all-important case. So, yesterday I decided to learn for myself just what it said. The Court's opinion was written by Justice Harry A. Blackmun. The entirety of the document is quite interesting; some of it struck me as naive, though I'm certain it was not; one aspect was shocking. 

It appears that the State of Texas made the argument that, "apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy and that therefore the State has a compelling interest in protecting that life from and after conception." Writing on behalf of the majority, Blackmun simply responded, "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." This, in my view, is stunning. Allow me to explain why.

Some time ago, I heard John Piper draw an analogy between abortion and hunting. If you go into the woods, he said, and you see something moving but can't quite tell what it is, you don't shoot. It could be the animal you are after, but it could be a person. It could even be your hunting buddy. The potential exists that this movement could be a human being. And if that potential exists, then you don't shoot your weapon at the movement. If you did, and it turned out to be a person, then you would face the criminal charges of manslaughter or perhaps even murder. The point, Piper said, is that if the potential exists that you are destroying a human life, then you do not shoot your weapon. Likewise, when it comes to abortion, if we don't know whether the preborn should be considered human beings, even if we conclude they are potential persons, then we should not abort them. If the potential is there that this is a person, you don't fire your weapon. 

Two problems with the Court's reasoning should be clear. First, by finding in favor of Roe and overturning every state statute outlawing abortion, the Supreme Court effectively did precisely what it said it need not do. The written decision may have remained explicitly agnostic with regard to the beginning of life, but by legalizing abortion and denying legal protection to the preborn the Court implied that they are not alive. They are not persons. Second, the Court did not give due weight to the possibility that there may be life there, at least in potential. The Court simply said that it did not know and did not care. If the Court were to walk into the woods and see movement behind a tree, expect a barrage of more than fifty million shells to be unleashed. "Wait," you urge, "might that movement be caused by a human being?" The Court simply responds, "Maybe, but maybe not. No one really knows, after all. So, fire away."
Image courtesy of Salvatore Vuono / FreeDigitalPhotos.net


Nick said...

Great insights, Matt. I find it very interesting that if someone kills a woman who is pregnant then it is counted as a double homicide. According to the quotes above, arriving at this decision should be impossible--after all, who is a court to decide when life begins.

Wes said...

I was not around to understand the spirit of the question back in 1973, but it seems to me that Roe v. Wade is a Supreme Court case decided uniquely ahead of the vast cultural debate that was to follow. In the case of the Civil Rights Movement, there seems to have been a robust, albeit tumultuous public discourse. As you said, this lack of certainty about how to frame the question makes the Court's decision even more puzzling, since they in effect decide, "we can't agree if this action is ethical, so we will allow it anyway." I suppose if the act in question was a bit more removed from the possibility of unjustly taking a life, then a 'permissive' or latitudinarian decision would have been more understandable and contingently ethical to some degree. It's amazing how broadly the Court vascillates during its history between making exacting decisions based on a preventive or consequentialist system, such as the original decision in favor of prohibition of alcohol. I see the logic there running, 'alcohol consumption leads to many social ills, therefore we will prohibit an act entirely.' In Roe v. Wade, it seems the ethical consequences of the Court's decision were deferred as a quandary that then was seen as unanswerable at the time. But in the abortion question, as not in the prohibition question, the decision to allow because uncertainty prevails seems to me inordinately risky, considering the gravity of the question.