In part one, I pointed out that Roe v. Wade totally ignored the Constitution and made new law, contrary to the requirements of the Constitution that laws are to be made by the legislature and not judges.  I also pointed out what the Court used to come up with their decision, such as English Common Law, references to mythology, and ancient cultures such as the Roman Empire, the ancient Greeks and the Persian Empire. In this piece I will deal with the legal argument that the Court used to justify making abortion Constitutional.  My sources for this piece will be based on an article by Carolyn Gargaro, called “Roe v. Wade – The Unconstitutional Decision,” dated February 3, 2000, and an online debate sponsored by the Federalist Society for Law and Public Policy Studies, between two attorneys, Wendy Long and Jennifer Brown, called “Abortion and the Courts,” dated March 27, 2007.  I will refer to each as necessary. 

Abortion has been considered “Constitutional” since Roe v. Wade in 1973.  The Court, by a vote of 7 to 2 declared that abortion was guaranteed by the Constitution under an implied right to “privacy.” 

Now, the immediate question here is where in the Constitution do we find “privacy”?  Nowhere – it is not there; the Court admitted that it was not there.  So where did they come up with it?  Gargaro quotes Justice Harry Blackmun, the author of the majority opinion:  “In varying contexts the Court or individual justices have indeed found at least the roots of that right.”  They found the “roots” of the right to privacy in the 14th Amendment’s concept of personal liberty.  A little history is appropriate here.  The 14th Amendment was passed in 1868 for the purpose of correcting the infamous 1857 Dred Scott v. Sanford decision.  This decision said that Congress could not prohibit slavery and that Blacks were not full persons afforded the same rights as Whites.  So here we have the Supreme Court in 1973 using the 14th Amendment which reversed the Dred Scott decision, classifying another class of humans as non-humans – the unborn. 

The Court further found that the 14th Amendment contains a “penumbra” of implied rights and that one of those rights was privacy.  Privacy is nowhere mentioned in the 14th Amendment either, but the Court, somehow, saw it there. Gargaro points out that  “Justice Blackmun, further stated that the words “due process” went further than the penumbra of the Bill of Rights, and created rights implicit in the scheme of ordered liberty.”  From this, he developed a limited right to abortion. That’s it; abortion became “Constitutional.”  The Roe Court took for themselves the role of the legislature in making new law. 

The Court established two major assumptions: 

a)     The unborn is assumed not to be human.  The Court mentioned in their decision that a human is only a person after birth and that rights are guaranteed only to persons.   The Court asserted that “only post-natal life have Constitutional rights”. 

b)    A right was established based on privacy, which included the right to make a life and death decision based on privacy anytime prior to birth. 

As I mentioned in Part I, the Declaration of Independence specifies that there is a right to life; it declares:  “all men are created equal and are endowed by their Creator with certain unalienable rights” and that one of these rights is life.  Gargaro further points out that “this right belongs equally to all human beings.  Thus, under this definition of the right to life, there can be no distinction based upon whether human life is “potential” or full.”  

 In the confirmation hearings of 2005/2006 for Chief Justice John Roberts and Justice Sam Alito, the legal concept of Stare Decisis was brought up.  This concept basically states that if a decision has been around for a long time, this fact in and of itself is reason for that decision to remain valid and not be overturned.  So, if we follow this logic and, let’s say that the Dred Scott decision was still around, we could not overturn it because of Stare Decisis; so a black person today could not be considered a person. 

Both sides have argued this topic vehemently for the past 34 years.  Those who support abortion use the Court’s language that abortion is a private matter and this fact is protected by the Constitution.  They ignore the unborn as a human and maintain that it is not a person.  How does the pro-life side counter this argument? For this I will refer to the online debate mentioned earlier, Wendy Long argued the pro-life side.  She contends that our Constitution protects individuals from being deprived of liberty, or property without “due process of law.”  This is quite different from the pro-choice contentions that the Constitution protects individuals from unwarranted intrusion into their private domain.  What Roe actually did was to wrest from the hands of the people of the United States the policy decision that is properly theirs to make through their elected branches of government accountable to them.  

If the people so choose, they can amend the Constitution; the Court cannot and should not take from the people what is theirs, but that is what Roe v. Wade did. Accordingly, Roe violated the Constitution that it it’s sworn to uphold. The Court ruled that the unborn is not a human and has no protection in law.  We now know, and science has confirmed, that life begins at conception and that the unborn is a member of the species homo sapiens who is in utero:  A legally cognizable person who exists from the moment of conception. A murderer who kills a pregnant woman, for example, commits double homicide and the killer is guilty of a double homicide. 

As Wendy Long points out:  “The Constitutional “personhood” ruling is, like the rest of Roe, judicial fiat in search of a rationale, and – again, like the rest of Roe – it comes up woefully short.  Blackmun reasoned (being charitable with this term), first, that the other uses of “person” in the Constitution apply only postnatal….Tellingly, however, the Court had construed the word “persons” in the Constitution only one other time.  In 1886, it held that a corporation – a fictional, nonhuman entity – is a “person” entitled to equal protection and under “due process” of law.  Corporations don’t exactly fit the way “person” is used elsewhere in the Constitution.”  Long further points out that: “the medical profession rejected the “quickening” doctrine and accepted the science that a new human life begins at conception.  The American Medical Association successfully lobbied most states to protect unborn life from conception by criminalizing all abortions.  Accordingly, it makes little sense that the very state legislatures that were enacting these laws had a different understanding the 14th Amendment.  It has never been an essential part of the pro-life argument (although it is an argument that some pro-lifers make) that the 14th Amendment’s concept of “person” should extend to the unborn.  Rather, the bedrock pro-life legal argument is that the 14th Amendment’s concept of “liberty” does not – by virtue of any Constitutional text, principle, or even intent – legitimately extend to a “right” to abortion.” 

A question that is always ignored by the pro-choice side is what is the unborn?  They ignore this question, but this is the only question.  Scott Klusendorf[1] tells of the example of a young child running to his mother who is in the kitchen washing dishes with her back turned away from the child.  The child asks his mother “mommy can I kill this?”  To answer this question you need to know “what is it?”  If it’s a fly, yes, if it’s the younger brother, the answer is no.  If the unborn is not a living human, then abortion is as controversial as removing your tonsils, but if the unborn is a living human, then we have cause to be concerned.  The Roe Court reference to “potential life” is a failure of reason, Long contends.  There are two questions we must face:

1.  Is the unborn child human or subhuman?

2.  Is the unborn child alive or dead? 

The unborn child is unmistakably human and unmistakably alive.  It is painfully obvious that the only way we can condone Roe v. Wade is to deny reality and deny equal protection of the law.  The Court is not supposed to rule according to what is popular at the time, but time and time again we’ve seen that they have done exactly that.  For example, the Dred Scott decision was decided when slavery was popular.  Roe was decided when abortion became popular in our culture.  The Courts are supposed to protect those who need the most protection – the ones who have no voice.

 [1] Scott Klusendorf, Pro-Life 101, (Signal Hill, Ca: Stand to Reason Press, 2002), p. 8

If you listened or watched the hearings for the Supreme Court nomination of Chief Justice John Roberts or Justice Sam Alito last year you will recall that neither of these two candidates would ever think of saying to the Senators during their confirmation hearings that abortion is not a right in the United States Constitution – if they had they would have been dismissed on the spot. But is abortion a right that is covered by the Constitution?  The answer is a resounding no. You will not find it anywhere or any hint of it, yet we are led to believe all the time that abortion is, somehow, guaranteed by the Constitution.  How is it that this blatant misrepresentation has been perpetuated and believed by people who should know better and that this intentional misrepresentation has been repeated now for 34 years? 

It is a well known fact that the 1973 Supreme Court decision known as Roe v. Wade has been regarded by legal experts on both sides as an extremely flawed legal decision that is not supported by the reason, evidence nor lack thereof given for it.  In this piece I will provide evidence of just what was used to come to the decision that, as of today, has resulted in over 47.5 million unborn babies killed by abortion. 

Every judge swears to uphold the Constitution when taking the oath of office.  Judges rule on the existing law.  They do not make law themselves, as required by the Constitution; that is the role of the legislators elected by the people.  You will often hear this referred to as “strict constructionism.” I will show that Roe v. Wade not only ignored the Constitution, it thumbed its nose at it.  Chief Justice John Roberts, in his confirmation hearing, last year, stated that a judge is like a baseball umpire who calls balls and strikes, he does not make the rules: "My job is to call balls and strikes, not pitch or bat." This is the perfect explanation of the judge’s role, yet the Roe v. Wade Court made a mockery of this - they made law themselves. 

What the Supreme Court did in 1973 with Roe v. Wade can only be called brazen judicial activism, that is, they made law rather than interpret the law.  I will present evidence here to show just how hollow and wrong the Roe v. Wade decision was. The information that follows is drawn from an article written by Attorney Steven T. Voigt on 9/24/05, in an article titled “A Discourse on Roe v. Wade and a Challenge to Law Professors This Fall.”  According to Voigt: “If any law student or a practitioner of law objectively reads Roe v. Wade, the opinion must surely seem like a proclamation from planet Bizarro World.  The opinion is unlike all other legal opinions that law students study in school and that lawyers encounter in practice.  It suffers from next to no analysis of legal precedent.  It contains no examination of the Constitution or of legislative intent.” 

So, if the justices did not rely on the Constitution, like they’re supposed to, what did they rely on to come up with the decision?  What follows is hard to believe, but it is the truth, which can be verified by anyone reading the decision.  I will enumerate some of what was used to decide Roe v. Wade: 

1.     English Common Law.  The justices searched long and hard to find some English Common Law of the past that said anything they could use.  For one, they quoted Sir William Blackstone – and then only what he said that supported their argument.  Sir William Blackstone, in some of his writings, stated that abortion, after a woman who is “quick with childe” (after the unborn begins to move) is mere manslaughter and that abortion, in his day was becoming more liberal.  However, the justices neglected to point out that Blackstone, in other writings, stated that he viewed abortion as a criminal offense, albeit, a lesser offense than homicide.  Likewise, the justices also quoted Sir Edward Coke who took the position that abortion of a woman “quick with childe “is a great misprision (the deliberate concealment of a felony) and not murder.  Again, the Court neglected to mention that Coke observed that English Common Law ascribed special protection to pregnant women. 

2.     Ideas from religion but ignoring Scripture.  The Court failed to cite any Scripture but simply opined what they say is purported positions of major religions.  They surmised that “a large segment of the Protestant community” believes that life does not begin until birth and that this is also the “predominant view of the Jewish faith.  They even said that they believed that the Roman Catholic Church has not always believed that life begins at conception, although they have believed it for a long time.  This is a false assumption; the Catholic Church has always said that life begins at conception. The early Church, in the Didache, a teaching of the Apostles, taught that abortion is murder. 

3.     Mythology.  Even more disturbing is that the Court discussed the views on abortion of the ancient Roman Empire, the Persian Empire and ancient Greece, going as far as referring to Greek and Roman mythology.  Contrary to what the Court refers to, Scripture, such as Psalm 139, verses 13 and 16 state that God “knit me together in my mother’s womb, “saw my unformed body” and wrote our days in His book “before one of them came to be.”  This passage shows that God has known us from the beginning – conception. 

4.     The American Bar Association (ABA).  The Court looked for support for their position from the American Bar Association – a very liberal institution which is an activist lawyer group.  The Roe v. Wade court observed that in 1972 the ABA endorsed unrestricted and unlimited abortion in the first five months of pregnancy.  

5.     Radical Social Theory.  Marching lockstep with the fringe of social views of ultra-radical feminist theory, the Court stated that children “may force upon the woman a distressful life and future,” can cause “psychological harm,” and tax “mental and physical health.”  The Court also cited “distress for all concerned, associated with an unwanted child.” 

As you can see from these above, nowhere is there any reference to the Constitution.  What law are they ruling on?  They are simply pointing out opinions that match theirs, nowhere are they pointing to a law, whether in English Common Law or any other law.    They did not interpret any law.  The Court failed to consider any testimony contrary to their prejudiced view.  Voigt points out that the Court failed to consider testimony of women who’ve had abortions and how they have impacted their lives.  He points to the web site www.lovematters.com where there is a compilation of testimonies from women who’ve had abortion and how they have impacted their lives.  Anyone who is really interested can read these testimonies – they are riveting. Once you get to this web site, on the left side, go to “Abortion Stories” and then to “Women Tell their Abortion Stories.”      

The failures of the Roe v. Wade decision stagger the mind and are bewildering to the reasonable layperson or legal expert.  The highest court of the land failed all of its citizens and has irreparably harmed the nation.  As Voigt points out, the Court failed to reach high to grasp the moral standard that we Americans expect of our judiciary.  The Court failed us by disregarding the fundamental principles that comprise the fabric of American liberty.  The founding fathers would be appalled. 

The Declaration of Independence states, in part:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."  Time and again, as exemplified best by the Declaration of Independence, our founding fathers championed natural right inherent in all men, not the least of which is unalienable right to life.  Abraham Lincoln called the Declaration of Independence the "hope to the world for all future time" yet the Roe v. Wade court did not rely on it, nor cite it even once.

One of the functions of the courts is to protect the weak and the wronged.  How can a handful of lawyers in our highest court in good conscience remove from the American people and their legitimate legislators the ability to protect the most innocent of our society – those who yet have no voice?  The court, in Roe v. Wade stole the right to make laws from our legislators.  In a later piece I will cover how they invented the mantra that an unborn can be killed by a right of “privacy”.