Norma Sherry: Whose Life is it Anyway?

Everywhere I go these days I see bumper stickers on cars that read, “We vote pro-life”. I find myself turning my head so I can see what these drivers look like. I guess I must expect that they’ll look unusual or different somehow. Interestingly, they’re not. I couldn’t help looking to see if they adorned that coiffed hairstyle that seems to identify the new far-right and Christian movement or that polished politician’s look. In most cases, however, they look much like most of us. In fact, I laugh at myself remembering the adage my mother used to say, “You can’t tell a book by its cover”.

But I can’t help wondering if these pro-life voters are simply pro-birth or are they also pro-raising, pro-caring, pro-financially-supporting these little lives? Is the limit to their belief that every embryo should evolve into a breathing viable person or have they considered what that unwanted life may face in life’s journey?

Life, what a precious commodity, what a gift to a loving couple striving for a family - and yet, here we are debating and arguing when life actually begins. Writer and Benedictine nun, Sister Joan Chittister, is succinct in her appraisal of our “moral dilemma”. Clearly, she states, “I’m opposed to abortion. But I do not believe that just because you're opposed to abortion that that makes you pro-life. In fact, I think in many cases, your morality is deeply lacking. If all you want is a child born but not a child fed, not a child educated, not a child housed and why would I think that you don't? Because you don't want any tax money to go there. That's not pro-life. That's pro-birth. We need a much broader conversation on what the morality of pro-life is.”

Most of us have a position on this hot topic. If you’re forty-years of age or older than this discussion has consumed your consciousness most of your lifetime, as it has mine; you remember the days of backstreet abortions and desperate measures some women thought were their only option – and it was. As a motherless woman, and a woman who has always wanted a child, the thought of aborting a viable life growing within me would be unthinkable, but, as a woman who respects the right of other women to the inalienable rights over their own bodies, I would side on the side of a woman’s right to decide.

If it were up to me I would uphold Roe v. Wade. I would uphold it because I believe that each of us: man or woman has the right to determine what is right for their own bodies. This is not an issue for the government, or our president, or our presidents-to-be, it shouldn’t even be a case for the courts, it, however, should reside within the hearts’ of the affected parties.

I decided in this contentious atmosphere of a new Justice in the Supreme Court, and the foreboding fear that this momentous court decision may be overturned, that I had to completely comprehend what went into the decision of Roe v. Wade. I had to read it for myself. What I came away with was a new appreciation for the thoughtful process that became the controversial ruling.

As most of us know, Roe v. Wade was a case brought before the court by a single woman, Jane Roe, on behalf of herself and all women similarly situated. “Roe alleged that she was unmarried and pregnant.” She wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”. She stated, however, that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”

As I read Justice Blackmun’s opinion, I found it to be sensitive and heedful of the times and of times past. He wrote in his profound statement that the justice’s acknowledged the “sensitive and emotional nature of the abortion controversy” and that they were aware “of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.” He articulated that the considerations of philosophy, personal experience, religious training, attitudes toward life and family and their values, as well as moral standards influenced “one’s thinking and conclusions about abortion.”

He noted that the justices sought to earnestly resolve the issue by “constitutional measurement, free of emotion and of predilection.” He wrote that some emphasis “upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries” was taken into consideration.

He articulated the history of women’s rights and abortion. He described in great detail the times of the Persian Empire and how abortion and those performing abortion were punished. _He noted that abortion was practiced in Greek times as well as in the Roman Era, _and that “it was resorted to without scruple”. _He wrote that “Greek and Roman law afforded little protection to the unborn”, and that “ancient religion did not bar abortion.”

Justice Blackmun also wrote a thorough investigation into the meaning of the Hippocratic Oath followed by an even longer evaluation of ‘common law’ and the term “quickening’ referring to the fetus’ first movements or animation. Interestingly, it was noted to be different by forty days for female versus male fetuses until the 19th century. “These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’ A loose consensus evolved in early English law that these events occurred at some point between conception and live birth.”

The Justice continued by stating that a “recent review of the common-law precedents…makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus…”

Furthermore, that “… not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening…

“Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.”

His opinion continued with, “It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.” In fact, according to Justice Blackmun, “a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today,” with respect to the early stage of pregnancy. The opportunity to make this choice was present in this country well into the 19th century. “Even later”, he wrote,
“the law continued for some time to treat less punitively an abortion procured in early pregnancy”.

“Three reasons”, the Justice added “have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.”

He wrote, “It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct.” He added that, “the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.

“A second reason is concerned with abortion as a medical procedure.” He explained that when most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman, particularly prior to the development of antiseptic techniques. Even after Pasteur and Lister’s discoveries in 1867 it was not generally utilized until the 1900’s. Therefore, it was “…argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman”, and, “to restrain her from submitting to a procedure that placed her life in serious jeopardy.”

As we now know, and Justice Blackmun opined, “Modern medical techniques have altered this situation”. Medical data indicates that abortion in early pregnancy, “prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth”. Furthermore, he wrote, “Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared…

“The third reason is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception…

“Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life. _Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest.”

He continued in his Opinion by writing that, “There is some scholarly support for this view of original purpose. _The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus. _Proponents of this view point out that in many States, including Texas, _by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another. _They claim that adoption of the ‘quickening’ distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.

He concluded that, “It is with these interests, and the weight to be attached to them, that this case is concerned.”

In articulating the Constitution’s position on the right of privacy, Justice Blackmun stated, “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” He stated that the denial of aborting an unwanted pregnancy could “force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it”. He added that the difficulties and “stigma of unwed motherhood may be involved”. He noted that these were decisions for the mother and the physician to take into consideration.

It was determined in Roe v. Wade that the State of Texas “failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest."

Further, Blackmun stated that the argument that “the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment” was “outlined at length and in detail by the well-known facts of fetal development.” However, upon argument “the appellee conceded… _that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”

It was further noted that “the Constitution does not define "person" in so many words.” In fact, “in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. All this, together with our observation that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person’ as used in the Fourteenth Amendment, does not include the unborn.”

Later in his opinion, Justice Blackmun carefully stated, “Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. 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,” putting to rest this difficult dilemma.

He added, “It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth.” He added that this belief was predominant, although not unanimous with all major religions. He reiterated the significance of the common law, the notion of “quickening” and the physician’s stance on “viability”. He clarified the defining of viability to the infant’s ability to live outside of the mother’s womb. He even included the official Roman Catholic position on _the "ensoulment" theory, which recognizes the existence of life from the moment of conception.

Finally, he added that, “The unborn have never been recognized in the law as persons in the whole sense.”

Regarding the State’s position in preserving the rights of the unborn the Justice stated, “With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. (Viability is considered 24 to 28-weeks.) If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”

The Justice’s conclusion was that the Texas statutes were “unconstitutional and must fall” therefore siding with Roe versus Wade. The argument, and the battle, however, have raged on and continue to this day.

I realized when reading Justice Blackmun’s Opinion that I had never known his words before, nor those of concurring Justice Stewart. I had, however, long heard of Justice Rehnquist’s dissenting views. Perhaps this is the crux of the problem.

We have a tendency to proliferate the point of view that most closely agrees with our own, but in a nation built on the premise of laws it would seem only right to share all the views. Only then can an informed citizenry make up their own minds.

For me, one must ask of themselves would they want the government to dictate what they can and cannot do with regard to their own body? Is it the right of a governing body to determine the fate of another irrespective of a crime? Should we, each of us, decide for our neighbor how they should live their lives and populate or not populate this world we all share? Is this delving into another’s personal domain our legal right? I believe for most of us the answer would be no.

If, however, you deem otherwise, particularly in the case of forcing an unwanted child unto a reluctant mother, who then should become responsible for this new life? Should it be you? Should it be the government? (And certainly we all know how well the government functions.) Will this child be doomed to a life of foster homes or perhaps an abusive household? Who will feed and educate and clothe this unwanted child for 20-years or more? Considering that life is so precious why then would we want to force a pregnancy upon an unwilling mother?

Our learned founding fathers determined that each of us was entitled to the right of privacy. As Justice Stewart wrote in his concurring opinion that they recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Why can’t we?

© Norma Sherry 2006

Norma Sherry is an award-winning writer, co-founder of Together Forever Changing, an organization designed to enlighten and encourage citizens to fight for our liberties. She is also the producer and host of the weekly Norma Sherry Show on WQXT-TV. Norma welcomes your emails: norma@togetherforeverchanging.org

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