Roe v. Reason

by Richard Stith, J.D., Ph.D.

On 22 January 1973, in Roe v. Wade, the United States Supreme Court declared that an unborn child enjoys no constitutional protection before he or she emerges from the womb. Even after viability, the fetus in utero counts only as a "potentiality of human life," and can therefore be destroyed for broadly defined maternal health reasons, amounting virtually to abortion on request, right up to birth.i Location – in or out of the womb – thus determined whether actual human life existed and was worthy of protection under the Roe v. Wade ruling.

Many constitutional scholars (on both sides of the abortion issue) have criticized Roe for having no basis in our Constitution.ii The Court, they say, just invented the right to abortion in an act of judicial activism. This essay, however, will focus not on the flaws in Roe's legal arguments, but rather on its deeply arbitrary description of human development.

Let's take a close look at Roe's holding and at the key non-legal judgment with which the Court backs it up. Here's an excerpt from Roe's concluding summary:

"For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe abortion, except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother"iii (emphasis added).

Note that the Court is here saying that a state need not provide any protection for an unborn child who is fully viable (able to survive outside his or her mother's womb). There's no protection at all unless the state "chooses" to regulate late-term abortion. And even if it does choose to regulate post-viability abortion, a state still must allow abortions to preserve the "health" (not just the life) of the mother.

Roe goes on to refer us to its companion case, entitled Doe v. Bolton, for the Court's definition of "health," which includes: "all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the well-being of the patient."iv A woman obtaining a divorce in her eighth month of pregnancy, for example, might (as a newly single person) wish to abort her child for "familial" reasons. Indeed, since there can be hardly any sort of voluntary abortion that does not involve one or more of these broad factors, Roe v. Wade can be summarized as mandating a right to abortion at any time during pregnancy, right up to birth.

How could the U.S. Supreme Court leave viable unborn children with virtually no possibility of legal protection? Its reason is found in the passage above: Even just before birth, the child is supposedly only the "potentiality of human life." Our highest court claims not to know that any unborn child is actually human and alive. This judgment doesn't come from the Constitution or the law; the Court is making a non-legal claim about the nature of human development. Roe holds that a change in location, passage through the birth canal, can turn a potential human being into an actual human being. An unborn child overdue at nine and one-half months is considered only a potentiality, while a cousin at seven months is an actual human life if he or she emerges prematurely from the womb. An abortionist must be very careful to make sure every child he removes from the womb is dead beforehand. If he does anything that causes the child's death a moment after it comes out, he may be guilty of murder.

But this makes no sense. What something is does not depend on where it is. How something is perceived may change with location, but not what it is in itself. We can relate to a baby in many new ways (holding, gazing, etc.) after it is born, but we know it is the same being that was alive and kicking in its mother's womb just a short time before. The Court didn't just reason poorly in Roe. It abandoned reason altogether, in favor of a wholly arbitrary stipulation of when actual human life must be considered to begin.

We might not mind the Supreme Court drawing a willful line in some minor procedural area of law. But Roe concerned the most fundamental of all issues, the question of who belongs to the human community. A plausible concept of "who counts" as a human being is the necessary starting point for all legal (as well as all ethical) reasoning.

Here's an analogy: I would see as rational, though I would disagree with, someone who argued that the death penalty is permissible because the interests of felons are outweighed by the interests of society. But I would be dumbfounded by someone who claimed that once the accused is convicted of a heinous crime, he or she ceases to be actually alive or human, and so can be destroyed without a qualm. To make such an argument would be not so much to reason poorly as to give up on reason entirely, leaving us nothing more to say to each other. How can we reason together if the clearest of starting points is openly denied?

Thus one fundamental reason that Roe v. Wade must be overturned is just this: It commits our nation to a wholly irrational definition of who we are, and so of our human dignity and rights. For example, supporters of abortion naturally want to defend Roe. But none has ever been able to explain how passage through the birth canal can bring life and humanity magically into existence. So they sometimes urge unthinking obedience to the Supreme Court – perhaps claiming there is no right answer as to whether a fetus is alive or human, so Roe's answer is as good as any. Of course, they then can have no objection in principle if the Court defines away another group's legal rights (say, the right to life of those with serious mental disabilities). Or, even more ominously, pro-choice thinkers may agree with us that there is no difference in the child in and out of the womb but then go on to argue, in an extension of Roe, that there is thus nothing inherently wrong with post-natal infanticide. (This is the position of Princeton professor Peter Singer,v and apparently of every academic philosopher who supports Roe's right to abortion throughout I doubt that many would come up with such frightening contentions if they did not feel compelled to defend the indefensible – i.e., to defend Roe v. Wade.

If the most fundamental of all issues—who belongs to the human community—is to be settled by an unreasoned diktat, it's no wonder people have stopped talking to each other about lesser matters. If we can't agree that a child of human parents who is active in the womb is human and alive, how can we trust each other's good faith concerning less obvious and important truths? In line with Roe v. Wade, many today aver that factual as well as value judgments are just stipulations and so need not be checked against reality. This is an excuse for indifference to others' views. As a result, conversation comes to seem hopeless. Many become discouraged with logical, clarifying discourse and lapse into apathy. If Roe has not by itself caused this breakdown of public reason, it certainly has contributed mightily to the decline of civil debate in our nation—and not just on abortion. Our Catholic tradition, to the contrary, insists upon reason as an essential foundation for the rule of law.

If Roe v. Wade is overturned by a future Supreme Court, the abortion debate will not end. Indeed, it will only then begin. We cannot be certain that the pro-life side will win. But at least then we can insist that pro-choice legislators explain why a heartbeat doesn't prove life exists at three weeks gestation, and explain what species our unborn babies belong to if they are not human. We can ask for a reasoned response to our strongest non-religious argument: "Weren't you yourself once a human fetus, and a human embryo before that? Aren't you the same organism, the same being, as you were at conception—just more developed?"

Yet I think there are reasons to hope that we will eventually convince America to provide substantial legal protection for all unborn children, if the Supreme Court ever backs off its irrational claim that location (in versus out of the womb) can determine human being and dignity. Most states now treat the killing of an unborn child as a kind of homicide, if committed without his or her mother's permission. (Such laws have been held constitutional because Roe does not privilege involuntary abortions, those done without maternal consent.) Some of these states do not protect the first few weeks of life, but many do. In Minnesota, for example, someone convicted of intentionally killing a just-conceived human embryo, by attacking its mother, can be sentenced to life in prison for "murder of an unborn child."vii And in 2004, the very similar federal Unborn Victims of Violence Act became law, as a response to the tragic killing of Laci Peterson and her unborn child, Conner. That law provides that an unborn child at every point in its development gets the same federal protection as its mother. We may thus hope that, if the Court gives them a voice, the American people will open their hearts and minds and declare every single human being worthy of equal protection.

Unfortunately, the reasonableness of the American people and of our legislatures has not yet reached all our courts. Excessively influenced by Roe, some state courts have persisted in holding that an unborn child cannot be a victim of homicide, even when killed without his or her mother's consent. And of course, the U.S. Supreme Court has not backed off Roe. Indeed, in the year 2000, it extended Roe's permission to kill. While the first footnote in Roe v. Wade had indicated that the Court was not granting a right to abortion during the birth process itself, in Stenberg v. Carhart the Supreme Court built on Roe to allow abortion even during the delivery of a child (i.e., abortion after a "partial birth" in which the child is pulled out feet first, right up to its neck, before its brains are suctioned out while its head still lies inside the womb).viii The only real hope for life and justice in our nation lies in the replacement of the Carhart majority with men and women willing to overturn Roe rather than to extend it. Yet, ironically, Carhart itself can give us a measure of confidence that reason will win out in the end. For Carhart ridicules Roe's idea that location can matter when deciding who deserves legal protection.

The majority in the Carhart case made it quite clear that the fact (in a partial-birth abortion) that the unborn child is four-fifths outside the womb when it is killed makes no difference whatsoever.ix It's still the same being in reality, regardless of whether it's entirely inside or mostly outside. The change in location doesn't matter. Judge Richard Posner, in a case affirmed by Carhart, put the matter very clearly:

"From the standpoint of the fetus, and, I should think, of any rational person, it makes no difference whether, when the skull is crushed, the fetus is entirely within the uterus or its feet are outside the uterus. ... No reason of policy or morality that would allow the one would forbid the other."x

Picking up on Posner's argument, Justices Ruth Bader Ginsberg and John Paul Stevens argue that any prohibition of partial-birth abortion is (in their words) "simply irrational" because it is no more (again in their own words) "brutal," "gruesome," "cruel" and "painful"xi than the sort of late-pregnancy abortion already approved by Roe, where the still-hidden fetus is dismembered alive, with its limbs and then its body pulled out piece by piece before its head is finally crushed.xii In other words, the two justices say it is irrational for a state to regard a fetus as more worthy of legal protection simply because it is nearly born, located outside the womb up to its neck.

In claiming that partial-birth abortion is no more "brutal" or "painful" to the child than the inside-the-womb abortion originally envisioned by Roe, these justices concede that Roe's original sort of abortion is at least as brutal and painful as partial-birth abortion. In arguing that it is "simply irrational" for the states to think a baby's location can matter, they implicitly concede that Roe v. Wade itself was simply irrational in its reliance on location as a test of human existence and dignity.

Roe abandoned reason in holding that some children can be cast out from the human community and brutally killed. That is obvious from the text of Carhart, and from the irrational lengths to which judges and others must go to defend the decision. May reason prevail, and soon.

Richard Stith teaches at Valparaiso University School of Law. In addition to his law degree, he has a Ph.D. in Religious Ethics, both from Yale University. He serves on the board of directors of University Faculty for Life and is also on the board of Consistent Life.

i Roe v. Wade, 410 U.S. 113, 162, 164-65 (1973). Roe says the law may not require any maternal health reason, even a very broad one, for abortion prior to viability.
ii On the pro-choice side, see e.g. John Hart Ely, "The Wages of Crying Wolf", 83 Yale Law Journal 920-49 (1973), Edward Lazarus, "The Lingering Problems of Roe v. Wade", Find Law's Writ, October 3, 2002, available at, and Laurence H. Tribe, "Foreword: Toward a Model of Roles in the Due Process of Life and Law," 87 Harvard Law Review 1-53 (1973).
iii 410 U.S. at 164.
iv Doe v. Bolton, 410 U.S. 179, 192 (1973).
v See e.g., Peter Singer, "Killing Babies Isn't Always Wrong", The Spectator, Sept. 16, 1995, at 20-22.
vi A thorough examination of pro-Roe philosophical arguments has shown that none finds anything inherently wrong with killing newborn infants. Don Marquis, "Why Abortion is Immoral", 86 Journal of Philosophy 183, 195- 201 (1989).
vii State v. Merrill, 450 N.W.2d 318, 321 n.1 (Minn. 1990), cert. denied 496 U.S. 931(1990).
viii Stenberg v. Carhart, 530 U.S. 914 (2000).
ix 530 U.S. at 930-31.
x Hope Clinic v. Ryan, 195 F.3d 857, 879 (7th Circuit, 1999).
xi 530 U.S. at 946, 952.
xii 530 U.S. at 924-26, 938-46.