Recently the ladies of The View took up the discussion of Anthony Kennedy’s retirement. They front loaded it with some classic demagoguery from President Donald Trump:
“Democrats want judges who will rewrite the constitution anyway they want to do it and take away your second amendment, erase your borders, throw open the jailhouse doors, and destroy your freedoms. We must elect more republicans.”
Then Whoopi Goldberg, who was clearly disturbed (along with a large part of America) by the news of Kennedy’s retirement, shot back with some demagoguery of her own:
“I don’t like hearing again that I’m trying to take your rights away. Because, as a woman, I think you’re trying to take my rights away; as a person who believes in the Constitution, which tells me I have the right to be myself and do the things I want to do and I don’t have to listen to what your religion is and I don’t have to listen to what you want it to be. I don’t like this line that I, as a Democrat or Independent or whatever, am trying to take away anything from you. I’m trying to hold onto my personal rights. If you take mine, I feel like you’re the one with the problem. You don’t want people to take your guns? Get out of my behind, get out of my vagina, get out!”
Later on she stood a little “taller” on her soapbox and essentially prevented Meghan McCain from expressing her opinion on the nature of abortion:
“I’m not okay when people say I want my stuff but you can’t have yours. The government has said I have the right if I need an abortion I can have one and I feel that you have every right to have the guns you want there are some guns I think shouldn’t be out there but I don’t say you can’t have your damn guns I don’t want anybody saying to me I’m going to make this decision for you I know how your life is and I know how you feel…” and what started as woke raving turned into incomprehensible word salad.
The Tragic Irony
The painful irony here is that the very same amendment that recognizes the natural rights of women and black Americans bringing US federal law into alignment with the vision of equality held by the founding Fathers denies her conclusion that she has a right to an abortion under the understanding put fourth in Roe v Wade. AKA there is a virtually iron clad case to be made that the 14th amendment protects the unborn.
Largely forgotten today this was probably the largest legal hurdle to expanding abortion rights beyond the special case of danger to the mother’s life in 1972. The Supreme Court majority maneuvered its way around the 14th amendment by arguing:
“the purpose of these laws, almost all of which were passed in the nineteenth century, was not to protect prenatal life, but rather, to protect the pregnant woman from a dangerous medical procedure. At common law, abortion was regulated in relation to the “quickening” of the unborn, the “first recognizable movement of the fetus in utero, appearing usually from the sixteenth to the eighteenth week of pregnancy.’ Blackmun argues that under the common law’s framework, prior to the enactment of statutory abortion regulations, abortion was permissible prior to quickening and was at most a misdemeanor after quickening. Therefore, Justice Blackmun claims that because abortion is now a relatively safe procedure, there is no longer a reason for its prohibition. Consequently, Justice Blackmun asserts that given the right of privacy, and given the abortion liberty at common law, the Constitution must protect a right to abortion.“ -Francis Beckwith
In summation the majority argued the laws that were written during the 19th century to regulate abortion were predicated on the danger of the procedure. Medical science having considerably advanced in the 100 years following these laws made that legal reasoning obsolete according to the majority.
There’s only one problem with this argument. It is false. Not medically but legally.
“However, since 1973 the overwhelming consensus of scholarship has shown that the Court’s history, especially its interpretation of the common law, is almost entirely mistaken. Justice Blackmun’s history…is so flawed that it has inspired the production of scores of scholarly works, which are nearly unanimous in concluding that Justice Blackmun’s “history” is untrustworthy and essentially worthless.“- Francis Beckwith
Conclusions based on Lies
The majority was reliant essentially on two articles by Professor Cyril Means who was an advocate for the repeal of abortion laws. And unfortunately for him (and Roe v Wade) his work in this area has been severely discredited and no longer seen as a reputable resource for understanding Abortion Law.
Since Roe v Wade there has been a near universal consensus over the meaning of the abortion laws surrounding the 14th amendment. James Witherspoon clarified the new historical understanding:
“The primary purpose of the nineteenth-century antiabortion statutes was to protect the lives of unborn children is clearly shown by the terms of the statutes themselves. This primary purpose, or legislative recognition of the personhood of the unborn child, or both, are manifested, in the following elements of these statutes, taken individually and collectively: (1) the provision of an increased range of punishment for abortion if it were proven that the attempt caused the death of the child; (2) the provision of the same range of punishment for attempted abortions killing the unborn child as for attempted abortions killing the mother; (3) the designation of attempted abortion and other acts killing the unborn child as “manslaughter”; (4) the prohibition of all abortions except those necessary to save the life of the mother; (5) the reference to the fetus as a “child”; (6) the use of the term “person” in reference to the unborn child; (7) the categorization of abortion with homicide and related offenses and offenses against born children; (8) the severity of punishments assessed for abortions; (9) the provision that attempted abortion killing the mother is only manslaughter or a felony rather than murder as at common law; (10) the requirement that the woman on whom the abortion is attempted be pregnant; (11) the requirement that abortion be attempted with intent to produce abortion or to “destroy the child”; and (12) the incrimination of the woman’s participation in her own abortion. Legislative recognition of the personhood of the unborn child is also shown by the legislative history of these statutes. In short, the Supreme Court’s analysis in Roe v. Wade of the development, purposes, and the understandings underlying the nineteenth-century antiabortion statutes, was fundamentally erroneous. That analysis can provide no support whatsoever for the Court’s conclusions that the unborn children are not “persons” within the meaning of the fourteenth amendment, and that states do not otherwise have a “compelling interest” in protecting their lives by prohibiting abortion.”
There are 12 distinct lines of evidence showing that Roe V Wade was incompatible with the 14th amendment. And perhaps most disturbing about our own cultural moment is that the prevalence of ultra sound seems to be one of the primary drivers for the consistent (though slow) turning of the public opinion tide against current US abortion law.
“Roe v. Wade came at the tail end of millennia of ignorance about human development. Before ultrasound technology, developing life in the womb was a black box.”
The sad truth is that statements like these only highlight the embarrassing regression of ignorance caused by SCOTUS in Roe V Wade (something that the writer actually affirms tangentially). Because the abortion laws that inform our understanding of the 14th amendment were put in place as a consequence of the major advancements in embryology that occurred nearly two centuries ago.
“Only in the second quarter of the nineteenth century did biological research advance to the extent of understanding the actual mechanism of development. The nineteenth century saw a gradual but profoundly influential revolution in the scientific understanding of the beginning of individual mammalian life. Although sperm had been discovered in 1677, the mammalian egg was not identified until 1827. The cell was first recognized as the structural unit of organisms in 1839, and the egg and sperm were recognized as cells in the next two decades. These developments were brought to the attention of the American state legislatures and public by those professionals most familiar with their unfolding import-physicians. It was the new research finding which persuaded doctors that the old “quickening” distinction embodied in the common and some statutory law was unscientific and indefensible.” -Francis Beckwith
In other words Trump’s so called fear mongering about the Democrats wanting to place judges on the court that will rewrite the constitution in any way they want isn’t really fear mongering (at least in this instance). Planned Parenthood V Casey admitted that Roe V Wade’s reasoning was flawed yet upheld the ruling anyway. Roe V Wade is itself a cavalier revision and any judge seeking to uphold it is participating in the rewriting of one of our most fundamental and cherished laws directly forged out of crucible of the Civil War.
This is highly ironic because the very legal reasoning Goldberg is defending is the kind of reasoning that could remove US legal protections of her natural rights if an actual Nazish regime ever inexplicably came to power in the US. This debate is fraught with practical complications due to the toxicity of our current political climate but the way forward is not meeting one kind of demagoguery with another even more ignorant sort, but by delving deep into our grand tradition together and finding the truth.