Lest we forget...

 

Lest we forget, today is the thirty-eighth anniversary of Roe v. Wade. Many Americans—as well as others—will commemorate in some fashion this landmark decision. Some will celebrate, but others will mourn. I find myself in the latter category. Why?

First of all as I reread the decision penned by Justice Blackmun, I realize that he did not, contrary to the opinion of others, answer the question he posed about the personhood and the humanity of the unborn. As lawyers, we know that the use of language is important to the position we argue and then seek to justify. In a manner of speaking, Justice Blackmun posed the question about the status of the unborn, but he dodged the bullet when the trigger was pulled when he said, “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.” (Italics added)

In spite of the fact that there may not have been consensus in 1973, Justice Blackmun was in a position to answer the question then just as we are today. Consensus is not essential to answer any difficult issue. Facts and objective reason, on the other hand, are crucial to the task. And what do the facts state: that the fertilized ovum is a new human. On that point, it is worth reflecting that each one of us was in this precise state in the earliest moment of our human existence. While in our mother, we were not simply of our mother. We were us and no other. We were different. We were separate. We were human. We were new. Objective reason helps us to understand these facts and to comprehend their significance about the meaning of being human and being person.

If consensus was not essential to specify: why separate was not equal, viz. Justice Harlan in Plessy; why it was wrong to conclude that “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes...Three generations of imbeciles are enough,” viz. Justice Butler in Buck v. Bell, consensus is surely not needed to conclude that a child in utero is, in fact and in reason, a member of the human family, new and distinct from the mother and father—or the donors of genetic material, if you prefer.

Let us not forget this. Then we might be in a far better position to help not only the woman who finds herself pregnant and in some difficulty but also the child whom she carries in her womb whose continued existence is also at stake if arguments based on “privacy” or “equality” or something else lead some to justify that his or her life may be destroyed.

 

RJA sj