THE ABORTION DECISION: TWO YEARS LATER: Dred Scott Revisited:
Trinkaus, Walter R
WALTER R. TRINKAUS Dred Scott Revisited Father Decker argues in effect that a person (especially, in the light of Vatican II, a Catholic) who believes abortion to be immoral is not thereby...
...Furman v. Georgia, 408 U.S...
...There is an identifiable victim...
...This is a position bearing on philosophical if not religious principles...
...For example, if one's conscience would permit the use of hardcore pornography, a law prohibiting this material would not violate a right of conscience...
...He is right, of course, in distinguishing morality from legality...
...This is the function of the Bill of Rights and the Fourteenth Amendment...
...The various protective rules for those charged with crime, for example, as well as the restrictions on capital punishment, are generally unpopular...
...Justice Blackmun in Roe v. Wade claimed that there was a prevalence of abortion at the time of the adoption of the Fourteenth Amendment, and concluded that the unborn were therefore not protected by the Amendment...
...The controlling difference between contraception on one hand and slavery or infanticide on the other is that the latter involve an attack on the fundamental rights of persons...
...And even as to those moral issues which do not involve victims, the position of Father Decker goes too far...
...Laws do reflect the moral attitudes of society, and all of the members of society are entitled to express their views according to their own principles...
...Nor have they refrained from asking the legislatures and the courts to take a position...
...And even in the last three months, right up until the moment of birth, the Court refuses to recognize a right to life, though it does perceive a valid state interest in the "potentiality of life" at this point...
...For the second three months, during a period of rapid fetal development, the state may take such steps as are necessary to protect maternal health, but may not protect the unborn child...
...Accordingly, if we believe that an unborn child actually is a person with rights, we are obligated in conscience to do our utmost to protect the life of that person by law, notwithstanding a substantial mentality in our country which is willing to accept abortion as an answer to life's problems...
...But this recognition of state interest is rendered meaningless by the exception that it does not extend to preserving such potentiality of life if an abortion is required to preserve the life or health of the mother...
...But no one has seriously proposed that the law abandon its strictures on crimes with victims (murder, rape, theft, etc.,) despite the fact that they are also prohibited by the Ten Commandments...
...the Court rightly exempted itself from deciding these religious and/or philosophical questions...
...Nevertheless, when basic rights are at stake, the Court frequently has not hesitated to ignore public opinion...
...It is noteworthy that a majority of the Court did not deem themselves precluded from holding capital punishment laws unconstitutional despite the prevalence of capital punishment when the Eighth Amendment was enacted...
...On the other hand, if he had been discussing (before the Civil War) slavery, the argument would be most questionable...
...abstention is a denial of rights...
...238...
...Whether this life is considered a "person" or simply a "human life" (or even a living entity with the potentiality for humanity) it is undeniably an existing living victim immeasurably different from ununited egg and sperm cells...
...For example, Father Decker's argument would have been persuasive if he had been discussing contraception instead of abortion...
...These clauses are used to protect the basic rights of all persons, particularly the weak, the helpless, the unpopular, and the minorities, from the powerful and the majority...
...But a law which prohibits abortion would not violate a right of conscience...
...The present issue, then, appears clear: Is abortion to be classed with contraception, or is it in the same category as slavery...
...Consequently, just as a person in 1850 who believed, contrary to the belief of many others, that a human being of African descent was a person with all of the basic rights of mankind had no choice but to seek the abolition of slavery by law, including, if necessary, a constitutional amendment, so also a person today who believes that the existing but unborn child is a person with all of the basic rights of mankind has no choice but to seek the abolition of abortion by law, including a constitutional amendment...
...This allows the attending physician the room he needs to make his best medical judgment...
...Not only are there clear differences of opinion in our diverse society concerning the desirability of many of these protections, but in a large number of instances, constitutional protection is given contrary to prevailing opinion...
...In other words, even in the last three months of pregnancy, if there is a medical judgment that an abortion is called for because of physical, emotional, psychological, familial factors, or because of the woman's age, it must be allowed...
...Is it any wonder that those who view abortion as the taking of innocent human lives are calling for a constitutional amendment to overcome these decisions, just as amendments were required to overcome the institution of slavery...
...While all human conduct affects society or other persons at least indirectly and in some degree ("No man is an island"), we can in a general way distinguish those activities in which there is no direct victim...
...Legally, the term "person" means "bearer of rights...
...It might be argued, for example, that laws compelling an anti-abortion taxpayer to contribute to the payment for abortions violates his right of conscience...
...But a distinction must be made between different types of immoral conduct...
...This does not seem extraordinarily fair...
...Philosophically, the true significance of the term recognizes that a human being is immeasurably above and apart from all other forms of existence...
...Therefore, the issue, once again, is whether there is a "victim" in an abortion...
...The moral argument against abortion is based on the premise that there is a victim-a tiny, helpless, innocent human being whose very life is being taken for the convenience of others...
...A belief that the law should abstain from prohibiting so-called "victimless" activity does not lead to the conclusion that others are precluded from speaking out in favor of such laws under penalty of being charged with inflicting their philosophical and religious beliefs on others...
...Is it any wonder that there has been a loud and persistent outcry against these abortion decisions...
...The conclusion from the foregoing is that the nature of the abortion controversy is such that the Court could not absolve itself from the necessity of taking a position as to the nature of fetal life, and, in fact, did take a position by holding that it is not worthy of the law's protection...
...Those who seek to overturn Roe v. Wade by a constitutional amendment want to extend the due process and equal protection clauses to prenatal life...
...Father Decker's article implies that the historical material set out in length in the opinion, as well as the arbitrary three trimester divisions of pregnancy, are open to question...
...What it held in effect was that there is considerable dispute as to the nature of this life with the result that the states should be prohibited from protecting that life...
...Father Decker's discussion pertaining to the right of conscience fails to distinguish a conscience which prohibits some practice from one which permits the practice...
...WALTER R. TRINKAUS Dred Scott Revisited Father Decker argues in effect that a person (especially, in the light of Vatican II, a Catholic) who believes abortion to be immoral is not thereby required, or even morally permitted, to seek to have it abolished by law through a Constitutional Amendment...
...Justice Blackmun himself has been quoted as saying that Roe v. Wade "will be regarded as one of the worst mistakes in the Court's history or one of its great decisions, a turning point...
...But the Court refused to consider the issue as one requiring a determination based on reality, and reached its conclusion by precisely the same sterile method of reasoning used by Chief Justice Taney in Dred Scott, namely, the prevalence of a practice at the time the constitutional provisions were adopted...
...When fundamental rights are threatened, a Gallup Poll is irrelevant...
...In contraception, however, there is no living victim...
...Just as making conduct legal does not make it moral, so also a belief that conduct is immoral does not always require that it be made illegal...
...Dred Scott pointed to the prevalence of slavery when the Declaration of Independence was pronounced and the Constitution adopted, and held that neither document, therefore, could be interpreted to refer in their recitation of rights to Negroes...
...Moreover, in these instances of concern for rights, the Court has necessarily been influenced by the philosophical principles of its members...
...In Doe v. Bolton, the companion case to Roe v. Wade, the Court approved the view that the mother's health is construed to bear upon her psychological as well as her physical well-being and agreed that "the medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial and the woman's age-relevant to the well-being of the patient...
...Moreover, the abortion controversy is such that those who do believe that abortion is wrong because it involves the most serious invasion possible of the basic right of existing human beings have no alternative but to seek laws, including constitutional provisions, to protect these lives...
...In doing so, he is not trying to impose his own religious or philosophical views on others (as he could be charged with doing if he sought to outlaw contraception), but is seeking only to protect human beings by the millions whose right to life is in jeopardy...
...Consider his following language referring to Roe v. Wade: "Confronted with the diverse religious and philosophical answers given to the question of abor(Continued on page 388)DRED SCOTT (Continued from page 384) tion [slavery] in our pluralistic society...
...Some might argue that it violates a right of free expression, but that is not conscience...
...Actually, the very fact that there is this widespread acceptance of abortion is what requires the imposition of legal and constitutional protection...
...The Court added: "All these factors may relate to health...
...He considers the ruling of Roe v. Wade, in which the states are prohibited from recognizing a right to life at any time before birth, not only right and proper, but more in accord with Christian principles than the position of its critics...
...A devastating war and the Thirteenth and Fourteenth Amendments to the Constitution eventually overcame the failure of the Court to meet the underlying principles involved in basic human rights...
...Our laws are replete with instances where immorality and illegality properly coincide...
...And it is room that operates for the benefit, not the disadvantage, of the pregnant woman...
...Before the Civil War, the country was deeply divided on the religious and philosophical questions pertaining to slavery...
...Or, to focus the issue more precisely, is abortion more closely related to contraception or to infanticide...
...The Court held that the unborn human being is not a person, conceding that if it is a" person, its right to life would prevail over the right of privacy of its mother...
...The Court took a position also when it refused to conclude that the unborn life is a human life, as an issue distinct from personhood...
...The nature of the issue (involving basic human rights) was such that inaction is itself action...
...Those who have fought the battle against racial discrimination in recent years have not held back in fear of imposing their religious and philosophical views on others who held different views...
...adults, obscenity and the use or possession of the milder drugs...
...But when the Supreme Court had an opportunity to confront those questions, it refused to do so, and Dred Scott v. Sanford became infamous as a result...
...The Court leaves the abortion decision to the judgment of the pregnant woman and her physician for the first three months of pregnancy, ignoring completely the uncontroverted fact that there is a living human entity in existence at three months with a detectable heartbeat and recordable brain waves...
...Religiously, many believe that human beings are persons because they are created in the image of God...
...What is overlooked in the reasoning of Roe v. Wade is that the Supreme Court, despite its disclaimer, did take a position...
...To hold otherwise would be to say, for example, that those who believe the laws of the land should reflect the "Playboy philosophy" may be heard, but the opposition must remain silent...
...The Court prohibited the states from recognizing a right to life in the unborn child at any time before birth...
...Those who consider it a grievous mistake should not be told to remain silent...
...This is a position...
...On the other hand, a law which requires a person to do something contrary to his conscience would violate this right...
...Indeed they are...
...This has been recently reiterated in Part V (Morality and Law) of the Declaration on Procured Abortion of the Sacred Congregation for the Doctrine of the Faith dated November 18, 1974: "It is true that civil law cannot expect to cover the whole field of morality or to punish all faults...
...In recent years, there has emerged a growing movement toward eliminating from our penal laws conduct referred to as "crimes without victims," and the suggestion is made that the law withdraw from such activity as sexual conduct between consenting Walter r. trinkaus, a founder and first president of the Right to Life League of Southern California, is Professor of Law, Loyola University of Los Angeles...
...That is a position: a denial of rights and a sentence of death to millions...
...In short, if in doubt, you can kill it...
Vol. 101 • February 1975 • No. 14
