Source: The Witherspoon Institute
September 15, 2015
To understand how the barbaric acts revealed in the recent Planned Parenthood videos could have remained concealed for so long, look no further than the linguistic legerdemain by our country’s highest court, which in its 1973 Roe v. Wade ruling fashioned a scientific and cultural mythology that persists to this day.
Roe’s majority opinion is a narrative as peculiar and eccentric as Alice in Wonderland, but the court’s cockeyed constitutional reasoning should not distract us from one of its most pernicious legacies—a contempt for truth and facts. Nothing exemplifies the Court’s dishonesty more than its misleading account of nineteenth- and twentieth-century embryology, and its Through the Looking-Glass version of the medical community’s early engagement in the abortion debate.
History Shrouded in a Dense Fog
In considering whether the unborn child is a “person” under the Fourteenth Amendment, Justice Harry Blackmun began his imaginative opinion by going all the way back to the third century BC. He regaled readers with a history lesson about Aristotle, the Stoics of ancient Greece, the Persian Empire, the Middle Ages and Renaissance, and how the Catholic Church once believed the Aristotelian theory of “mediate animation” (i.e., that the male embryo acquires his soul after forty days, whereas the more complex female embryo must wait until the eightieth day).
Curiously, Blackmun saturated his opinion with twenty-seven references to the idea that “quickening,” the point at which a mother first perceives fetal movement, was long thought to be the moment when life begins. Never mind that medical science had discarded this notion as archaic long before the Fourteenth Amendment was ratified in 1868.
I waited and waited for Blackmun to turn his attention from archaic beliefs to scientific discoveries that are relevant to a discussion of fetal personhood and the Fourteenth Amendment—discoveries during the late-eighteenth and early-nineteenth century that changed everything about our understanding of human life and its beginnings. After all, if the high court deemed it important to give a shout-out to the ancient Stoics’ beliefs when discerning what concept of “person” the framers of the Fourteenth Amendment had in mind, shouldn’t we have also heard at least a whispered comment about the work of people such as Dr. Martin Barrie, who described in 1843 how a human life is formed at conception when the male sperm fuses with the female ovum (egg)?
Not according to Blackmun. Not one scientific observation from any time after the Middle Ages found its way into his discussion of whether the unborn is a person under our Constitution. The Roe court not only excavated a cryptic abortion right entombed deep inside the liberty clause of the Fourteenth Amendment, it also formulated a handy new maxim for judicial rulings: when contemporaneous facts do not support your argument, give a lesson in ancient history.
Only after Blackmun concluded that the unborn have no Fourteenth Amendment protections did he fleetingly turn his attention to modern medical science in deciding whether, and if so, at what point the state could exercise its influence in protecting the unborn. But after three short sentences on the subject of conception, he felt compelled to point out—again—that “common law found greater significance in quickening,” as though scientific concepts from the thirteenth and twentieth centuries were on an equal footing in modern-day medico-legal jurisprudence. He concluded:
Substantial problems for precise definition of [conception as the beginning of life] are posed, however, by new embryological data that purport to indicate that conception is a ‘process’ over time, rather than an event . . .
Substantial problems? He never explained this assertion, and it is little wonder he sidestepped the topic. Arguing that conception is a “process over time,” rather than an “event,” is like saying that the opening pitch of a baseball game is a process rather than an event. Sure, it involves a windup and release of the baseball, and it consumes a fleeting moment of time, but every child who has ever played baseball knows that the first pitch—and not the seventh-inning stretch—marks the game’s beginning. Likewise, every high school student who has taken a biology course knows that conception marks the beginning of human life. A small but vocal group of abortion-minded jurists, physicians, and college professors seem to be the only ones confused about this simple scientific fact.
Blackmun’s only other “discussion” of conception-as-the-beginning-of-life was the following statement: “Some of the argument for [restricting abortion] rests on the theory that a new human life is present from the moment of conception.” But this was artful misdirection; he did not devote a single sentence to exploring this “theory.” The footnote at this point contains no scientific texts—none. And importantly, the majority opinion offered no other theories, and no refutation of conception as the beginning of a fully human life.
The ruling includes over 500 words about a thirteenth-century cleric and a jurist’s views about the origins of life—and it even cites environmental pollution as a topic worthy of consideration—but our modern scientific understanding of life’s beginning earned just two conspicuously skeptical comments in the court’s analysis. This, despite the fact that virtually every embryology text and medical textbook from the late 1800s through Roe v. Wadeaffirmed the “theory” that conception is the beginning of a new human life.
Just because mankind believed the earth was flat through most of human history, it does not follow that determining the earth’s shape remains a difficult issue. And so it is with human life. One can dispute the moral value of a nascent human life—though not without casting aside the most basic human (natural law) instincts—but that you are dealing with a living human being from the moment of conception is beyond reasoned debate.
Clearly, Blackmun’s purpose was not to ascertain the truth. He wanted to portray life and its beginnings as an impenetrable concept adrift in the murky miasma of metaphysics and science. Doing so teed up his now-infamous line: “We need not resolve the difficult question of when life begins.”
Again with Those Pesky Facts
In both oral arguments and the written opinion, justices for the majority explicitly stated that statutory proscriptions against abortion expanded in number and scope during the latter half of the nineteenth century, primarilybecause the medical community finally realized its dangers to the health of the mother.
Why was this important to the court’s majority? Well, if one could make the argument that abortion had since become a much safer procedure for the mother (though not for the unborn child) and that prohibitions were based on concerns that had become obsolete, it would be easier to nullify an abortion ban.
It is a tidy argument—but for one problem. The notion that the medical community’s opposition to abortion in the mid-nineteenth century had to do with the mother’s health is patently false.
Blackmun acknowledged in the court’s ruling that the American Medical Association (AMA) formed a special committee in 1857 to study the issue of abortion. From this effort came an extensive report in 1859 that gave three reasons for its continued practice:
1. “Widespread popular ignorance of the true character of the crime—a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.”
2. The fact that the medical profession itself had been “careless of fetal life,” though its “respectable members” were not “knowingly and intentionally accessory to the unjustifiable commission of abortion.”
3. “The . . . defects of our laws . . . as regards the existence of the child before birth. These errors . . . are based on mistaken and exploded medical dogmas.” [Emphasis added]
Note that all three of these reasons for curbing abortion had to do with the welfare of the unborn, not the mother’s health. Remember also what was happening during this period. Scientists such as Dr. Martin Barrie had shown us for the first time how and when a human life comes to be. Thus, it seems abundantly clear that, contrary to the court’s argument, abortion prohibitions increased because American society in general and state legislatures in particular came to understand the origins of life—they understood that abortion at any stage of pregnancy destroys a human life. All of this information about the AMA’s report is in Roe’s written record, so every justice must have known these facts.
Only one conclusion can follow from this: the court’s written opinion is a willful distortion of the medical profession’s historical attitudes and early cultural engagement in the abortion issue.
Incidentally, the AMA’s special committee on abortion concluded its final report in 1871 with an ironic flourish that would only become evident 100 years hence: “We had to deal with human life. In a matter of less importance, we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.” [Emphasis added]
The War against Reality Continues
Legal scholars on both sides of the abortion debate agree that Roe’s badly flawed constitutional reasoning and staggering disregard for constitutional judicial limits comprise what Lewis Carroll would call “uncommon nonsense.” Law professor and Roe scholar Joseph Dellapenna, who advocates absolute choice early in pregnancy and limited abortion rights thereafter, described the majority’s opinion as full of “irrelevancies, non-sequiturs, and unsubstantiated assertions.” But despite a relative consensus among legal experts regarding Roe’s gaping defects, after four decades we remain legally yoked to its deadly consequence.
For a brief moment, the door to medical science appeared to open wide in 1989, when Webster v. Reproductive Health Services brought out legions of scientists, physicians, and bioethicists on both sides of the abortion debate to respond to a Missouri statute that defined life as beginning at conception. However, the battle was effectively postponed for another day when the Supreme Court ruled that the question of life’s beginning did not bear directly on the legal issues being decided in that case.
In 1992, science and medicine were shoved further into the background when Justice Kennedy made each of us a deity with his pronouncement in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.” Kennedy’s words remind us that Roe was not an anomaly. In recent decades, the reasoning of many Supreme Court jurists has become “curiouser and curiouser,” and it is impossible not to wonder whether, in their deliberative process, predilections and prejudices sometimes replace facts and truth.
Against this judicial backdrop, is there any reason to believe we can ultimately win the battle to protect human life from the moment of conception?
There is every reason. Medical science is still sitting in the antechamber of this debate, waiting to be heard. Of course, we need more than science to challenge the pigheaded nihilism of our modern age, but scientific truths may eventually open minds to more fundamental metaphysical and theological truths. The recent Planned Parenthood videos show how quickly moral instincts can be rekindled when long-buried truths are exposed, and Supreme Court justices are just as susceptible to this effect as the rest of us.
Every single discovery in the field of human embryology has pointed to conception as the moment in which a whole and complete human being is created. No scientific discovery—not one—points to any other moment along the continuum of life. And technologies like high-resolution ultrasound have made evident the humanness of unborn children at progressively earlier stages of development.
Those who insist on parsing words like “person” and “life” and “human” have found no refuge in either common sense or science. As Lewis Carroll’s Cheshire Cat admitted to Alice, “Imagination is the only weapon in the war against reality.”
Pro-life advocates have a far more powerful weapon than imagination. We have truth.
Philip Hawley, Jr., MD is a physician and former Assistant Professor of Clinical Pediatrics at University of Southern California Keck School of Medicine. His novel,Stigma, was published by HarperCollins.