Legal Personhood and a Theological Critique of Roe v. Wade

John C. Rankin

[excerpted from First the Gospel, Then Politics …, 1999, Vol. 2, not published]

The Declaration of Independence defines “life” as the first unalienable right, but do the unborn qualify legally as well as biologically?

In the 1973 Roe v. Wade U.S. Supreme Court decision legalizing human abortion, it sought to distinguish between biological and legal humanity. The 7-2 majority opinion made an appeal to the Fourteenth Amendment, Section 1, of the Constitution, which reads:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The first section of the Fourteenth Amendment was in concert with the Thirteenth and Fifteenth Amendments. These three Amendments were enacted following the Civil War as the Constitutional means to redress the evil of slavery, ratified respectively in 1865, 1868 and 1870. First, slavery was abolished; second, legal personhood was granted to the former slaves with the accompanying unalienable rights, referring to the Declaration of Independence; and third the specific right to vote was given to the former slaves. The Roe Court argued:

“The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses for the fetus’ right to life is then guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment ….

 “The Constitution does not define “person” in so many words ….”

The background for this logic is the language of “born or naturalized,” where the Roe Court insinuated that such language excludes the unborn. The difficulty for the appellee (those defending the Texas laws which protected the unborn) was that the Constitution never addressed the subject of the unborn (nor does it explicitly mention marriage – but, as we have noted, it everywhere assumes marriage as the bedrock for civil society, and part of that includes the inviolability of unborn children). This silence was used by Roe as a pretense to dismiss their legal personhood. The Court had to concede the “well known facts of fetal development,” but then it separated out its relevance, as we shall see later on as well. The Court also had to concede that the Constitution does not define “person” in so many words, which is to say that it had no basis to say it does not include the unborn. But the ulterior non-legal agenda was in place – a true act of eisegesis.

The history of U.S. Constitutional Law traces through English Common Law back to the Bible. We have already seen the complete biblical affirmation of the image of God for the unborn, their personhood as defined by nephesh, and therefore the basis for legal protection. In English Common Law, the concept of personhood and its legal protection began with the moment of “quickening,” or when the mother first feels movement of the child within her. And thus, some abortion-rights supporters have said this is the point when legal personhood begins, and certainly no sooner.

However, this ignores the reason why quickening was chosen. In the medieval period, with no diagnostic ability to prove that conception has taken place, and prior to the knowledge of the sperm and egg as haploid cells becoming a diploid cell, quickening was the first legally verifiable sign they could rely on to certify that there was a pregnancy (the woman herself knew much earlier …). Today, we can verify it very shortly after conception, and with the knowledge that conception is the very moment when individual and discrete biological human life begins. We are grateful today for so many advances in scientific and medical diagnostics, but pro-abortion ideologues choose to ignore the science of conception.

We can ratify this interpretation, in that English Common Law did protect humans from the point of conception onward, with a retrospective diagnosis in the context of inheritance laws. Namely, if a man died, and it was later discovered (i.e., by means of the onset of quickening) that his wife was pregnant by him before he died, then that son or daughter would be given full inheritance rights according to the laws of the time. Those laws would not come in force until birth, but this was not due to a view that personhood did not begin until birth. Rather, it was a view that birth was the time when a child can be determined to be male or female, named, baptized (as was the consistent custom then) and thus registered as a specific individual in the sight of the family, church and state. There were many stillbirths in those days, and infant mortality was high as well. But according to their ability to measure the existence of individual biological humanity, legal personhood was affirmed.

As well, the Roe opinion ignored an established consensus on the humanity of the unborn child which existed at the time of the Fourteenth Amendment. In his dissent, Justice William Rehnquist wrote:

“To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat. Tit. 20, §§ 14, 16 (1821). By the time of the Fourteenth [410 U.S. 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated [410 U.S. 176] their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [410 U.S.177] and “has remained substantially unchanged to the present time. Ante at 119, 35 L. Ed.2d at 158.

“There apparently was no question concerning the validity of this provision or of any other statutes when the Fourteenth Amendment was adopted. The only conclusion is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter [410 U.S. at 174-177].”

Justice Rehnquist was pointing out that the Roe majority was bastardizing the Fourteenth Amendment, making it apply in 1973 to something it never applied to in 1868. The Roe Court wanted to discover a rationalization to deny the legal personhood of the unborn, and they were as creative as possible, ignoring historical context. In 1967, every state and territory in the United States had laws on the books which severely or substantially restricted human abortion, and like the early church, they assumed the humanity of the unborn as the premise for their legal concerns.

Between 1967 and 1973 a few states reversed their positions as the organized pro-abortion movement was working through each state to secure their aims. They ran into growing resistance, and even in New York state, where they had early success. New York City became the abortion capital of the world, then the legislature later overturned the recently liberalized abortion law, but Governor Nelson Rockefeller kept abortion legal with a veto. Thus, the pro-abortion ideologues concocted a strategy to have the U.S. Supreme Court overturn all state laws restricting human abortion.

The Fourteenth Amendment was also bastardized by the Roe Court in that its original purpose was to grant legal personhood to a class of people who had been denied it – black Americans in particular. Roe is thus a classic legal example of the reversal. As the agitation was growing for the abolition of slavery, the 1857 U.S. Supreme Court in its Dred Scott decision claimed that the American Negro was not a legal person under federal law, and therefore not entitled to unalienable rights. The Fourteenth Amendment reversed this reversal along with the Thirteenth and Fifteenth. But the Roe Court took an Amendment that gave legal personhood to a class of people (the blacks) who had been denied it, and then applied it non-historically so as to deny legal personhood to a class of people (the unborn) for whom every state at one time had recognized. This is the height of dishonest lawmaking (by the Court, which is not constituted to make new law, but to interpret existing law – thus increasing the scandal).

The dishonesty is compounded by the drafting of the “born or naturalized” phrase against the unborn. In other words, this phrase in its context had nothing to do with saying no to the unborn, or even the “pre-naturalized.” In the context of the existing state laws and English Common Law, it was understood that rights were conferred when an individual was born and named, but in the positive sense where there was no dehumanization of the unborn.

Here the word “unborn” is specific in its usage in contrast with the word “pre-born” which many pro-lifers employ today. “Pre-born” is not a description; it is a hopeful prophecy, and one that is, tragically, not always fulfilled. If an unborn child dies in utero, then he or she was never pre-born, because birth was never reached. “Unborn” is descriptively accurate because it describes a full humanity at that stage regardless of actual destiny. Thus I find “unborn” a more accurate, and a more powerful term than “pre-born.”

This implicit distinction is in place in the language of the Fourteenth Amendment. Namely, no “pre” language was in place, because it was not needed, since citizenship was assumed for the sake of all those who were actually born. All those who are “born” were once “pre-born,” and existent in that state, and all who are “naturalized” are assumed to have once been “pre-naturalized,” and existent in that state. The description of an “unborn” or “unnaturalized” status had no purpose in this context. Because it was the American Negro in focus here, and not the unborn, the power of assumption was natural in the language. The Roe Court prostituted this language in service to the destroyer.

Also, the Roe Court ignored another overwhelming reality. Namely, though Connecticut led the way in protecting the unborn in 1821, most of the other 35 states and territories wrote their pro-life laws in the 1840s and forward, with other states doing so after 1868. Specifically, the very state legislatures that ratified the Fourteenth Amendment were composed of many of the same people who wrote the original anti-abortion laws in their respective states, or people who knew and agreed with the pro-life drafters. Thus, at every turn, we see how the Roe Court’s denial of legal personhood to the unborn based on the Fourteenth Amendment was a reversal of reality. It is also ironic that my home state of Connecticut, being the first state to give legal protection to the unborn, also led the way in the 1965 U.S. Supreme Court Griswold v. Connecticut decision on birth-control that then opened the way for legalized abortion based on a cognate logic in Roe, and has to this day the toughest pro-abortion laws of virtually any state.

In the historical period preceding the Fourteenth Amendment, the American Medical Association (AMA) was coming into existence, and it took a strong stand against human abortion. In 1857, Dr. Horatio R. Storer of Boston was appointed as head of the AMA’s Committee on Criminal Abortion, and in 1859 the fertilization of an ovum by a spermatazoon was first observed in a petri dish. That same year, the Committee made the following recommendations:

“Resolved, That while physicians have long been united in condemning the act of producing abortion, at every period of gestation, except as necessary for preserving the life of either mother or child, it has become the duty of this Association, in view of the prevalence and increasing frequency of this crime, publicly to enter an earnest and solemn protest against such unwarrantable destruction of human life …

“Resolved, That the Association request the zealous co-operation of the various State Medical Societies in pressing this subject upon the legislatures of their respective states …”

Roe v. Wade

The nature of the 1973 Roe v. Wade decision that overturned state laws which prohibited human abortion is rooted in deeply philosophical and religious assumptions. Not the law.

In Roe and its companion decision, Doe v. Bolton, the U.S. Supreme Court discovered a “penumbra” of the Constitution that equaled a broad “right to privacy,” as rooted in the 1965 Griswold v. Connecticut ruling regarding birth control. Then they declared there is a “right to privacy” broad enough to encompass a woman’s “fundamental right” to an abortion. (A question, however, that abortion-rights partisans cannot answer is: Can you show any philosophical or historical linkage between unalienable rights and the putative “fundamental right to abortion?”)

The “logic” it followed is a classic example of the reversal – theologically and politically. All the way through the ruling, the power of informed choice is rejected. There are eight major points to analyze.

1. The Pretension of Objectivity

First, Roe begins by citing the “emotional nature of the abortion controversy” that involves people’s philosophy, experiences, their “exposure to the raw edges of human experience,” their religious training and attitude toward “life and family.” Then it throws in issues of “population growth, pollution, poverty and racial overtones [which] tend to complicate.” But Roe never addressed these issues [other than a secondary reference to poverty in the Doe ruling], and never prescribes their successful redress and/or how liberalized abortion laws would contribute to such a redress. Having diagnosed this territory, it then pretends to be objective and rise above its pedestrian folly:

“Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection (410 U.S. 113 at 116).”

What we shall discover is that a) there is no honest constitutional measurement employed in Roe, and b) the Court’s ruling is based entirely on its predilections in favor of human abortion. It is an elitist posture seen often in the mainstream media’s reporting ethics – whether on television news, radio news or in newspapers. Namely, there is a facade presented that the “news” is being reported by “objective” reporters, when indeed, so often there is bias in what “news” is covered, and how it is “slanted” to serve a certain predilection.

Honesty in the media would be far better served if the reporters would be up front about their biases or worldviews, thus giving to the viewers, listeners and readers the power of informed choice to consider such factors. To pretend to be objective rejects the power to live in the light. So too Roe.

2. False Definition of Terms

Second, Roe sets the stage for a false definition of terms (which equals misinformed choice), when it draws in the language of the “penumbras” of the Bill of Rights. The Random House Dictionary of the English Language, Second Edition (1987), Unabridged, introduces the definition of the word penumbra:

1. Astron. a. the partial or imperfect shadow outside the complete shadow of an opaque body, as a planet, where the light from the source of illumination is only partly cut off. Cf. umbra (def. 3a). b. the grayish marginal portion of a sunspot. Cf. umbra (def. 3b). 2. a shadow, indefinite, or marginal area.

In other words, what we have here is the groundwork for the whole Roe logic being rooted in a rejection of the power to live in the light. The Court based its ruling on what it declares as a “fundamental right,” on “indefinite, imperfect or marginal shadows.” This shows the deep weakness of its position. It is ethically occultic – it is a ruling from the darkness masquerading as the light. By fabricating a definition from the undefined shadows, it then imports such a definition into the core of the light of the Bill of Rights, and pretends it was there all along. Placing into the text what was not there, and then pretending it was there all along, is the classic definition of eisegesis. Theology is still the queen of the sciences.

3. Anti-Christian Bias Employed as a Pretense to Dismiss Scientific Fact

Third, Roe had to get rid of a time-honored definition of medical science which opposed human abortion as the destruction of a human life. This it did hand in glove with a bias against biblical faith. Abortion was shown to be acceptable in ancient pagan cultures, specifically in the Greco-Roman period. However, there was a fly in the ointment of this argument – the Hippocratic Oath, adopted in pre-Christian Greek culture, and which became the most widely respected ethical guide for physicians in western history. Part of the oath includes a pledge never to give a woman any drugs to produce an abortion. Up until the mid-twentieth century, medical school graduates would recite the Hippocratic Oath upon graduation. Now, however, wherever, if at all, it is still recited, the portion that renounces abortion is usually removed.

To cast aside the Oath, the Court adopted the “theory” of a notorious abortionist:

“Dr. Edelstein then concludes that the Oath originated in a group representing only a small section of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.D. 130-200) ‘give evidence of the violation of almost every one of its injunctions.’ But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging   teachings of Christianity were in agreement with the Pythagorean ethic.

“The Oath “’became the nucleus of all medical ethics’ and ‘was applauded as the embodiment of truth.’ Thus, suggests Dr. Edelstein, it is ‘a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.’

“This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath’s apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics (410 U.S. 113 at 132).”

Roe was a 7-2 majority decision, written by the late Justice Harry Blackmun, and it selectively chose sources to suit its biases. Dr. Edelstein’s bias was publicly known to be as strong as it gets in favor of legalized abortion, and therefore he was purposed in his agenda to dismiss the Hippocratic Oath. The Hippocratic Oath was of course a minority opinion among the Greeks to start with, as “abortion-rights” was a minority opinion in the AMA until the time of Roe. And just because ethics are violated does not mean they are to be thrown aside. Do we get rid of certain laws for human rights just because the majority of German culture acquiesced to Hitler in the killing of the Jews? Edelstein’s argument is in favor of returning to a period where the rule of law is not honored, which is an intrinsic element of human abortion to begin with.

Thus, based on the diagnosis of a “minority opinion,” Roe agrees with Edelstein and then shows its anti-Christian bigotry by stating that it was the Christian embrace of the “Pythagorean ethic” of the Hippocratic school that essentially fueled its social embrace. As Roe constructs its report of Edelstein’s argument, it then ratifies the dismissal of the Oath as a “manifesto,” as it were, of a minority upon the majority – which it was not.

To say this is to say that the Greco-Roman culture’s gradual embrace of Christianity until the fourth century A.D. was not based on their informed choice, but was dictated from above. It began as a minority opinion in a pagan culture (a common grace reversal of the reversal), as do any revolutionary changes, but then gained acceptance. Also, the truth is that the Christian opposition to human abortion was a quintessentially Hebrew position of honoring nephesh in the order of creation, now understood through the Messiah; and it was not conforming itself to the Hippocratic Oath. Rather, the Oath happen to coincide with Hebrew assumptions, and thus it gained currency as the Gospel was preached  and received within the Greco-Roman culture.

Roe thus eisegetes and does not exegete the “historical context.” By implicitly assigning the Hippocratic Oath’s “apparent rigidity” to its convergence with the Gospel, it becomes for the Court “a satisfactory and acceptable explanation” sufficient for the moment to dispense with “a long revered statement of medical ethics.” (But too, the Court could not be too explicit in its anti-Christian bigotry and get away it, thus it syntactically had to cloak the bias with the Pythagorean ethic – but historians know that it was the Gospel that provided for the enduring success of the Hippocratic Oath.) At every turn, Roe operates within this “penumbra” of shadowy edges. Roe is not looking for the core truth, but for whatever is passable, as served by willing biases within elitist culture. Roe operated in the darkness, and mocked the power to live in the light.

4. The Dismissal of the American Medical Association’s Historical Consensus

Fourth, Roe had to dismiss the position of the American Medical Association (AMA) in its opposition to abortion beginning with its 1859 report. A Committee on Criminal Abortion was formed in 1857 under the leadership of Boston physician, Dr. Horatio R. Storer, and in 1859 it made the following recommendations, as we have noted earlier:

“Resolved, That while physicians have long been united in condemning the act of producing abortion, at every period of gestation, except as necessary for preserving the life of either mother or child, it has become the duty of this Association, in view of the prevalence and increasing frequency of this crime, publicly to enter an earnest and solemn protest against such warrantable destruction of human life …

“Resolved, That the Association request the zealous co-operation of the various State Medical Societies in pressing the subject upon the legislatures of their respective States … (The Human Life Review, Vol. XIII, Winter 1982, pp. 95-96).”

An interesting point to note here is the exception clause – the life of the mother or child. In the medical practices of the time, a child’s life could be threatened by a continued pregnancy, and in such situations today we have excellent neo-natal care units to follow a Caesarean section, making this concern a non-issue in the developed world. The concern for the mother’s life then becomes a matter of when the child is too young for early delivery, and even so, this is quite rare.

Also, the language here makes clear that the humanity of the unborn was the focus of concern. In James Mohr’s book, Abortion in America (1978), and appealed to often by abortion-rights advocates, he argued that the reason the AMA opposed abortion, was for the ulterior purpose of establishing the hegemony of its guild against “unlicenced” medical practitioners. And he said that part of this involved an attempt to put abortionists out of business, especially women abortionists. No doubt the AMA sought to do so, but that was not why human abortion was opposed – it was opposed because of its intrinsic destruction of human life.

In addition, the Roe Court argued that the AMA’s position was not truly in regard to the well-being of the unborn child, but was out of concern for the woman – since human abortion was so dangerous to women at the time. Here is another eisegetical example – for the AMA’s language is clear in its concern for the unborn as fully human. Certainly the concern was equally for the mother and her unborn, and that is why the exception clause for her life was included. But there was no setting of the mother over and against her unborn child as Roe does, or vice versa as abortion-rights proponents accuse the pro-life advocates of supporting. The Court did not quote the above section of the AMA’s 1859 decision as I have – they chose another section, separated thus from the full context of the AMA’s decision, one that atomistically served their bias against the unborn.

5. The Dehumanizing of the Unborn

Fifth, the Roe Court had to dismiss the AMA’s concern for the humanity of the unborn (which the AMA maintained at least until 1967), and to dismiss any “theory” that human life begins at conception. Thus, Roe tendentiously embraces Edelstein’s “theory” of the Hippocratic Oath with its anti-Christian bias, and now must dispense with biological fact by labeling it as a dispensable “theory.” Roe argues:

“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 in the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.

“Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of pregnant women alone (410 U.S. 113 at 150).”

Near the conclusion of the Roe decision, it is explicit in the purpose for this language:

“In view of all this, we do not agree that by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake [e.g., for an abortion] (ibid. 162).”

In other words, Roe injects a “logic” that has no logic. It dismisses any concern for biological reality to impact the discussion of human life, reducing the question to one of many competing “theories” (read: classic syncretistic dualism in opposition to true definition of terms). It speaks of the biology of conception as a “belief,” in a pejorative sense, as though biological fact is religiously impositional and therefore invalid in the public domain. In truth though, Roe’s actual “belief” is opposed to scientific fact, and cloaked in legal hubris which mocks accurate definition of terms, and therefore, mocks the power of informed choice. This reasoning serves the reversal.

Then the Court further dehumanizes the unborn by calling for a “less rigid” interpretation of terms (read: amorphous), and thus, an invention the term “potential” life – so central in Roe’s thinking that it is placed in italics. How for example, as we looked at earlier, can embryonic human life be “potential” and not “actual”? Potential for what? It is not potentially human, but it is actually human in its essence and existence. And the unborn human has no potential to be other than human. The only potential is for the choices such a “little person” (the meaning of the Latin term fetus) will make, and if his or her life is protected to the point where those choices can be made.

6. The Invention of the “Right to Privacy”

Sixth, now that the humanity of the unborn has been denigrated based on a position of religious bias, a war has been concocted between mother and child, and the woman is made to hold a superior position of “rights” (the power to take and destroy in the reversal of the power to give). Then Roe sets about to invent the “right of privacy” that allows a woman to abort the “potential life” of her unborn child, with a logic that starts with a confession:

“The Constitution does not explicitly mention any right of privacy (ibid. at 152).”

Then Roe makes an eisegetical case that takes specific “zones of privacy” which the Constitution does mention, and extends them to a general “right of privacy” that nowhere exists in the Constitution, and applies it to what it ends up calling a “fundamental” right to abortion. Whereas the Constitution, in the Bill of Rights (the Fourth and Fifth Amendments), speaks of specific privacy rights – the right not to be forced to quarter soldiers in your home, and the right against search and seizure without a warrant – there is no broad “right to privacy” spelled out. Not to mention a “fundamental right” to destroy unborn human life. There is an assumed right, parallel with a concept of privacy, that the unalienable rights of life, liberty and property cannot be deprived apart from due process of law – of which the rights against quartering soldiers and unwarranted search and seizure are specific examples.

The Roe Court invented a broader “right to privacy” out of whole cloth for the sake of securing the “right” to human abortion. This could only be done by denying the humanity of the unborn, and therefore their right to privacy (e.g., the right to the sanctuary of the womb, against the search and seizure of their unborn human lives, would be the only consistent logic here). This is to say that the assumed “privacy rights” of the inviolability of a person’s life, liberty and property – for the woman to secure an abortion – comes at the price of destroying the “privacy rights” of the unborn to life, liberty and property. The unborn can be searched out and their lives seized.

So, with no broad “right of privacy” located in the Constitution, the Court’s “logic” then makes another blind but calculated leap:

“This right to 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 (ibid. at 153).”

Thus, though there is no “right of privacy” in the Constitution, Roe – with intrepid bias – invents and thus discovers one. Classic eisegesis. And it is predicated on a bias against the integrity of marriage. The Court’s decision not only rends child from mother, but also child from father, husband from wife, and thus man from woman in the larger context, in service to the male chauvinism of the abortion ethos. The husband and/or father never receives any mention in Roe relative to the abortion decision. In subsequent context, Roe defines why this “right of privacy” is needed:

“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may 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. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation (ibid. at 153).”

Roe regards the woman as autonomous, and this is not surprising since the Court has already separated the child from her. Now it excludes the man, who makes her pregnant, from the equation, then slides away from the assumption of the context of marriage into unwed motherhood. Roe is actively embracing the reversal order of sex, choice, life, /God. In the process, the Court further dehumanizes the unborn child by assigning him or her the status of “unwanted,” like disposable garbage. Yet its language cannot avoid the human pregnancy dimension to this dehumanized object. The schizophrenia of the abortion-rights position.

Then, upon the concoction of a laundry list of “potential” distresses, Roe invests its trust in those potential distresses. Thus we note two points of intellectual and moral schizophrenia. First, Roe trusts a biased “theory” by which to dismiss the Hippocratic Oath, then the Court throws out biological fact by relegating it to the status of “one theory.” Accept one “theory” and reject another “theory” according to what serves the desired bias. And second, Roe uses “potentiality” of the positive (human life) to dismiss the actual humanity of the unborn on the one hand, then uses “potentiality” of the negative (human distress) to dismiss the actual humanity of the unborn on the other hand. The reversal.

The potentials for distress are real. But the question is whether or not we invest our trust in the power to give or in the power to destroy. The first is biblical, but the Roe Court chooses the latter in accord with its anti-Christian bias. And the Court chooses the power to destroy by also rejecting the priority of faithful marriage. For Roe, the “private” relationship between the woman and her “responsible physician” merits note, but not the truly private relationship with her husband (in those cases where it actually is the husband; and Roe does not address the extra-marital preponderance to begin with).

Thus the Court invents a false right to privacy to destroy a true right to privacy. And the former “right” turns out to be a mockery, in that the overwhelming number of abortions since 1973 have little to do with a woman’s relationship with a “responsible physician,” and far more to do with an abortionist, theretofore and subsequently unknown, almost always male, and who is there only to evacuate her womb, make a profit, and send her on her way – all in service to the prevailing male chauvinism of the abortion ethos and industry.

7. Perversion of the Fourteenth Amendment

Seventh, the Fourteenth Amendment is perverted by the Roe Court to further dehumanize the unborn. This has been done biologically already, now the need is to remove the constitutional language of “personhood” from the unborn as well. Its decision reasons this way:

“The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

“The Constitution does not define ‘person’ in so many words. Section 1 of the Fourteenth Amendment contains three references to ‘person. The first, in defining ‘citizens,’ speaks of ‘persons’ born or naturalized in the United States. The word also appears both in the Due Process Clause and in the Equal Protection Clause …

“But 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, supra, 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 (ibid. at 156-158).”

Here Roe again dismisses the importance of biological humanity, seeking its well thought out strategy to separate this question from that of legal personhood. Its goal is to disinclude the humanity of the unborn. The Court is condescending with respect to the “well-known facts of fetal development.” Since these facts are well-known and clear, and since they militate against the Court’s bias, Roe had to define them off the table before dealing with the issue of legal personhood. Roe makes this clear as it acknowledges that both sides of the dispute admit that if an unborn child is defined as a “person” under the Fourteenth Amendment, then the unborn has a constitutional “right to life.” As well, the Court, in militating against the acknowledged humanity of the unborn, invents a “far freer” diagnosis of abortion’s availability in the 19th century, but that was only so by means of a de facto underground industry. Roe supported not law, but lawlessness.

We need to demonstrate the legal personhood of the unborn in order to win their legal protection. However, the argument about the language of the Fourteenth Amendment is off track for a number of reasons. The state of Texas, in arguing for the legal protection of the unborn, appealed to the Fourteenth Amendment. This was ill-advised, since the Fourteenth Amendment addressed former slaves, not the unborn. But as well, this fact shows the dishonesty of Roe’s response.

In other words, just as Roe admitted that the Constitution does not mention any “right of privacy,” it also admits that the Constitution does not define “person” in explicit terms. In both cases, the Court then argues from silence, not doing the honest work of examining the biblical assumptions underlying the language of the Declaration of Independence and the Bill of Rights. Rather, it eisegetes its anti-biblical bias into the text. The argument from silence is always convenient for the eisegete, and as well it is convenient to invent a “general” right to call into existence a “specific” right that is not in the Constitution.

The Court’s legal and moral schizophrenia is then evident; in the first instance it uses the invented general “right to privacy” to create a specific “right to privacy” entirely foreign to the Constitution and its moral foundations; and in the second instance, it refuses to acknowledge a moral definition of personhood that precedes legal language, and nitpicks among specific uses of “person” in contexts which do not refer to the unborn – in order to say that they do not refer to the unborn, and therefore the unborn are unreferenced, and thus there is no need to explore the issue further. The reality of this false syllogism will become clear as we progress. Think of the absurdity of the Court’s logic:

1. Roe invents a “right to privacy” that does not exist in the Constitution.

2. Roe refuses to acknowledge the true nature of moral and biological “personhood.”

3. Roe eisegetically examines certain legal language of “personhood” in the Fourteenth Amendment, so as to a priori preclude the unborn.

4. Roe then says this pre-selected language does not include the unborn, drawn from an Amendment that was not addressing the subject of the unborn.

5. Roe thus says the unborn are not referred to therein.

6. Roe thus says the issue deserves no further investigation at this point …

As stated earlier, the Fourteenth Amendment, in conjunction with the Thirteenth and Fifteenth, was drafted and ratified in order to give legal personhood to a class of people who had unconstitutionally been denied that right under the 1857 Dred Scott U.S. Supreme Court decision – black Americans. It had nothing specifically to do with the unborn, thus it should not have been referenced, either positively or negatively, on the question that Roe faced. Yet ironically, language that was drafted to acknowledge unalienable rights for one dehumanized class – black Americans; was then reversed by Roe to deny the unalienable rights to a formerly humanized class – the unborn, who thus become dehumanized.

Nonetheless, even though the Fourteenth Amendment was not the proper place to argue for the humanity of the unborn, once it was brought into the issue, it is helpful to show how its true exegesis in fact serves the humanity of the unborn.

During the nineteenth century, all the states that passed anti-abortion laws did so based on the humanity, indeed on the assumption of the legal personhood of the unborn (contra Mohr, cited above). These were the same state legislatures, whether including some of the same individual legislators, or subsequent legislators who believed the same way, that ratified the Fourteenth Amendment too. Thus, in their ratification of the Fourteenth Amendment which gave legal personhood to the blacks, they also assumed the legal personhood of the unborn. For Roe to argue that the Fourteenth Amendment does not include the unborn is thus a syntactically eisegetical nitpick designed to negate the larger reality that its context actually assumed the legal personhood of the unborn.

In his dissent to Roe, Justice William Rehnquist made this point clear, as we also have noted earlier:

“To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat. Tit. 20, 14, 16 (1821). By the time of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time. Ante at 119.

“There was apparently no question concerning the validity of this provision or of any of the other statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter (ibid. at 174-177).”

In testimony before the House Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary in 1976, University of Texas Law School professor Joseph Witherspoon summed up a key element here:

“The conjunction of state ratification of these Amendments (the Thirteenth, Fourteenth, and Fifteenth) with state adoption or modification (i.e., to make them more restrictive) of anti-abortion statutes designed to protect unborn children constitutes a contemporaneous legislative construction by states of the meaning of the Amendment they ratified. That construction can only mean that unborn children are human beings and persons under the Constitution. Any other view of their action would be out of line with the history of this period (Congressional Record, March 3, 1976, p. 5108).”

 In other words, there was an unchallenged positive consensus at that time – that human life is fully and legally present “at every period of gestation” (quoting the 1859 AMA report). [My proposed Platform language of “entire natural duration” precisely encompasses this reality]. Gestation begins exactly at the moment of “conception” and this biological fact has never been challenged since the 1859 AMA report. In 1959, the AMA tried to enlarge its concept of conception, helping to prepare the way for the fuzzy thinking of Roe. But it did not do so with any new biological facts, and in 1967 it still officially opposed human abortion.

8. The Pretension of Ignorance

Eighth, Roe is the first legal interpretation in U.S. history based on the assumption of a “non-consensus” as to the central fact of the case. It was based on a pretension of ignorance.

“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 this 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 (410 U.S. 113 at 159).”

What the 1973 Roe Supreme Court has done to this point has been a set-up for this pretension of ignorance, establishing an eight-point argument:

1. Roe chides the “emotional” nature of the debate and pretends to rise above it, all the while conforming to its own unstated biases;

2. Roe sanctions a war between the mother and unborn child, by first setting up a war between the mother and father of the same unborn child;

3. Roe invents a “penumbra” of undefined shadows in which to avoid an accurate definition of terms;

4. Roe dispenses with the history of Hippocratic and Christian medical ethics that opposed human abortion;

5. Roe dispenses with the AMA’s original history of opposing human abortion;

6. Roe dispenses with the biological facts of conception which would inform the discussion, claiming their irrelevance;

   7. Roe invents a broad then narrowly applied “right of privacy” to allow a woman to abort an undefined “potential” life; and

8. Roe further wages war on the unborn by denying them their constitutional personhood.

This is Roe’s greatest fear and weakness – the Court knows that the unborn child is human, and that abortion destroys a human life. Roe constructs a relentless artifice to get around the obvious, to adopt every conceivable angle to deny the humanity and civil rights of the unborn. But the Court has yet to convince itself – that is why it has conducted such a remarkable fishing expedition. Thus the Court now reveals its true theological colors, which the biblically literate will recognize: Roe appeals to the weakest form of moral argument there is – the pretension of ignorance – rooted in Cain’s response to Yahweh, which the religious elitists also used with Jesus [as examined elsewhere: click here]. Thus, the Court’s final point:

9. Roe pleads ignorance about the humanity of the unborn, and rationalizes their legalized destruction – its tendentious goal from the outset.

The Roe Court follows the logic of Cain and the Pharisees, its spiritual forefathers:

1. When dishonest elitists do not have the courage to admit true definition of terms and then make their case; and

2. When they cannot market a false definition of terms, because they know they cannot fool the common people with it; then

3. They pretend to be ignorant of reality.

As Cain killed his brother, as the devil always sought to kill the Messianic lineage, and as the religious elitists sought to kill Jesus, so too does Roe serve the agenda of the ancient serpent – to allow the killing of the most vulnerable image-bearers of God in our midst. And as the religious elitists feared the common people who believed in Jesus, so too does the elitist Roe Court majority fear the “consent of the governed” – the grass roots opinion of the people.

The Court thus makes a pretension of ignorance under the rubric of posing a non-existent “non-consensus.” Then to say that there is no “need” to resolve the central question of fact is as legally dishonest as it gets. When a jury renders a verdict (or a judge in cases where there is no jury), their simple duty is to determine what the facts of the case are. The judge is then the one who passes sentence. The jury must decide whether or not the accused man actually pulled the trigger, or if the accused woman did actually run the stop sign, or if the blood alcohol truly exceeded the legal limit, and so forth. Only when such facts are agreed upon, can a verdict of “guilty” or “not guilty” be reached, after which the judge will sentence the “guilty” or excuse the “not guilty.” In criminal cases, the jury must be unanimous, or else there is a “hung jury.” In civil cases, there usually has to be a 5-1 or 10-2 majority to render a verdict, or else there is a “hung jury.” If a “hung jury” does result, the judge must then decide whether to rehear the case with a new jury, remand the case to a lower court if applicable, or throw out the case entirely.

The Roe Court considered none of this when it stated in essence that there was a “hung jury,” a “non-consensus” as to when “life begins.” The context is biological human life, and Roe seeks again to fuzz this central question by introducing issues of philosophy and theology into the mix. As we have evidenced, the biology of conception is straightforward, and it is only Genesis that affirms such biological fact. But the Court is biased against biblical religion, against the ethics and factual substance of only Genesis, saying Christianity is prejudicial against women and freedom. Thus Roe’s introduction here of theology is only for the sake of a straw figure helpful to its dismissal of biological fact. Roe is careful not to speak of “individual biological human life,” but speaks in terms of “when life begins,” to again make it as amorphous as possible – to stay away from the specific fact that a single abortion destroys a single and discrete human life, if not two or more discrete human lives (in the case of twins, triplets, et al.).

Moreover, the Court’s introduction of the alleged “non-consensus” gives no evidence that such a “non-consensus” actually exists. On the contrary, as already noted, there is the overwhelming consensus regarding the humanity of the unborn and the biological facts of conception. And Professor Witherspoon demonstrated the “contemporaneous legislative construction” to the Fourteenth Amendment that affirms personhood for the unborn, and Justice Rehnquist cited the data that confirms this same view. The Roe majority has constructed its artifice, and now that it nears the end, the Court appeals to ignorance as its best source of authority.

But even if there were a “non-consensus” on the biological issue within the medical community, or on the application of “personhood” to the unborn in the legal community, we still have a “hung jury” according to Roe’s own admission. Thus, the Roe Court should not have ruled on the matter at all. But since it was not interested in interpreting the law as handed down from the U.S. Constitution, but in making new law to suit a predilection to allow legalized human abortion, Roe had to invent the most serviceable excuse.

The Roe Court was a) unwilling to admit the truth, and it was b) unable to market a lie and define a different point when “life begins” (i.e. some point after conception such as birth that would allow their agenda to be rationalized). Thus, the Court c) pretended to be ignorant as they postulated a non-existent “non-consensus” among a certain cultural elite. As Solomon says, “[T]here is nothing new under the sun” (Ecclesiastes 1:9b), and the Roe Court could not rise above the unoriginality of mimicking Cain, and mimicking the religious elitists who opposed Jesus. They adopt the weakest form of moral argument there is, in the pretension of ignorance, and the fact that this pretension has stood since 1973 is an indictment against the people of the United States. We have been too biblically illiterate and morally uncourageous to diagnose and overcome such a weak position which comes from the ancient serpent.

The Raw Judicial Power to Invent a New Right: Abortion on Demand

On the basis of Roe’s argument, the Court declared a woman has a “fundamental right” to abortion, and it created an artifice that divided pregnancy into three stages. In the first “trimester,” no state laws can regulate abortion. In the second trimester, the states could only regulate the medical conditions under which abortions were performed. And in the third trimester, states could restrict abortion except when the “life or health” of the mother was at stake.

In his concurring opinion following Doe, Chief Justice Warren Burger said:

“I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health.

“Plainly, the Court today rejects any claim that the Constitution requires abortion on demand (410 U.S. 179 at 208).”

Before leaving the Supreme Court some years later, Burger regretted these words and called for the Court to review Roe, to consider its reversal. He had bought the lie that Roe and Doe were motivated by compassion for women facing dire straits with the continuation of a pregnancy, and believed that the “restrictions” in place were reasonable because the medical profession had  a standard of ethical conduct to safeguard against the possibility of “abortion on demand.” In fact, too, the women used in the Roe and Doe lawsuits were both used against their knowledge and will by dishonest lawyers, women who to this day testify accordingly, and both of whom are pro-life. These three words, “abortion on demand,” haunted Burger because they describe exactly what came to pass.

Whereas most physicians do conduct themselves as Burger believed, it was not they who came to perform the abortions for the most part. The least reputable of physicians became the abortionists, making “blood money” wages, because so few physicians wanted to be a part of this sordid business in actuality (i.e. though many of them would defend theoretically the “right” to an abortion, very few wanted to do the grisly work of performing one – they know abortion destroys a nascent human life). Thus, in the second trimester, concern for proper medical conditions has been consistently mocked, and many abortion centers operate in unsanitary conditions that are nowhere else tolerated in the medical community. In the third trimester, the “health” clause has been used as a canopy for any rationalization, including “emotional” health, and has led to a wide availability of third-term abortions, and the reality of “partial-birth” abortions, just recently outlawed by the U.S. Congress (where a late-term unborn child is prematurely forced down the birth canal, in order for the abortionist to crush his or her skull, evacuate the brain, and thus make his work “easier” than in other methods, and to serve the black market for intact fetal body parts). What woman in the U.S. today cannot have an abortion up to nine months if she has the money? And too, Planned Parenthood is relentless in lobbying for taxpayer funded abortions as a “constitutional right” – the very opposite of what Burger envisioned.

In his dissent to Roe and Doe, Justice Byron White summed up what the Court did on January 22, 1973:

“The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has the authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to the Court.

“The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States (ibid. at 221-222).”

Justice White is mostly on target. He works with the “potential” life language, and separates his personal considerations from the subject (which if he at all wished to make human abortion legal, is at least intellectually and constitutionally honest on his part). And he still concludes that Roe was an exercise of “raw judicial power” which vitiates the “consent of the governed” (he does, however, concede that the Court “perhaps” had the legal if not moral authority to do so, and here I disagree with him – it had neither). Between 1967 and 1972 the abortion-rights movement was seeking to win its legalization through state legislatures – but that process hit a dead end and was beginning to reverse itself. So it bypassed the democratic process of an informed electorate and succeeded in getting the Supreme Court, not to rule on constitutional law, but to invent new law.

Theological Diagnosis

Roe violates the ethics of only Genesis [summed up in Genesis and the Power of True Assmumptions; see johnrankinbooks.com] at every turn:

1. It rejects the goodness of God as the Creator of human life, rejects the power to give, and instead it supports the power to take and destroy human life, where a war between man and woman, then between woman and child, is sanctioned;

2. It rejects honest communication and the power to live in the light, and instead supports the penumbras of the dark, and adopts occultic ethics in a process of manipulating words to serve self-aggrandizing power;

3. It rejects the ethical and biological needfulness in the nephesh of human nature, which the unborn share fully, and instead supports a Darwinian aggression of the strong over the weak;

4. It rejects true human freedom as expressed by the ethics and power of informed choice, and instead supports an idolatry of misinformed choice;

5. It rejects the power to love hard questions, and instead supports bias and ignorance;

6. It rejects the goodness of human sexuality as found in the unity of man and woman in marriage, and instead supports an autonomous sexuality that is the basis for promiscuity and the playground for male chauvinisms, thus augmenting a war between the sexes;

   7. It rejects science and the scientific method for determining fact, and instead supports a non-relevance of scientific fact;

8. It rejects verifiable history, and instead supports the deconstruction of history to suit its bias;

9. It rejects the history of the United States as rooted in biblical covenantal law, and instead supports the deconstruction of law to suit its bias; and

10. It mocks the unalienable right to life as given by the Creator, acknowledged in the Declaration of Independence, thus truncating the meaning of religious liberty in the First Amendment as it highlights its anti-biblical bias, and instead supports the choice to destroy life.

Roe reverses the God, life, choice, sex reality of the order of creation, and makes it sex, choice, life, /God. It reverses the unalienable rights of the Declaration of Independence and the Fifth and Fourteenth Amendments. It replaces Creator, life, liberty, property/pursuit of happiness with a hedonistic and atomistic pursuit of happiness,  liberty, life, /Creator. This is evident in the placing of a woman’s “liberty” ahead of the “life” of the unborn child.

Roe reverses the reality of theology, biology and law in one breath. In each of these three contexts, life precedes choice. Or to put it another way, choice cannot exist without life. But Roe places atomistic choice ahead of human life. Who among us chose to create his or her own life ahead of time? Who exercised choice without first having received the gift of human life from God (theology), from parents (biology) and not interfered with by the government (law)?

At Preterm abortion center in June of 1989, an abortion-rights partisan spoke with me about her “right to choose” abortion. So I asked her if she had chosen ahead of time herself to be conceived and born. She said no. So then I asked, “How then can you who are alive through no choice of your own, then deny the choice of life to your unborn child, without at the same time mocking your very own life?” She stopped, with a look of surprise on her face, thought about it momentarily, and then thanked me for the question.

How can any biblically rooted Jew or Christian even give an ounce of credence to the 1973 Roe v. Wade U.S. Supreme Court decision?

Roe equals a reversal of the order of creation, and we need to serve the reversal of the reversal in our public policy ethics and strategies. To do so, we need a) to redeem the language of choice to serve a true definition of human life, b)  demonstrate the male chauvinism that undergirds the abortion mind-set, c) criminalize such chauvinistic actions, and d) inject the ethics of informed choice into the current abortion laws, so that d) we can win the hearts and minds of the nation in order to secure a Human Life Amendment to the U.S. Constitution.

The Roe Court, as it tried to convince itself of the logic of this position, had to include a phrase in order to maintain an appearance of intellectual respectability when it posited the “non-consensus.” The Court said, “[a]t this point in the development of man’s knowledge ….” This left an open door for redress (which exists in the First Amendment to begin with), one where further “knowledge” can be brought to bear.

This was the purpose of a meeting of the U.S. Senate Subcommittee on the Judiciary, on April 23-24, 1981. It convened to see if there were any consensus as to the question of when an individual biological human life begins, in direct response to the language of Roe. An internationally distinguished panel of experts testified as to the reality of conception, including U.S. Surgeon General Dr. C. Everett Koop and French geneticist Dr. Jerome LeJeune. When Senator Max Baucus was invited to produce expert witnesses who would demonstrate a different point of biological origin, he did not produce any in the first round of testimony. In total, there was only one witness to challenge the consensus on conception at the hearings, professor Leon Rosenberg. But he failed to address the biological question of when an individual human life begins, and instead dismissed it as a religious and metaphysical issue outside the purview of scientific inquiry. Thus, the Subcommittee showed the Roe Court to be wrong – there was a complete consensus as to conception, and the abortion-rights argument is based on a pretension of ignorance, and on a religious bias against the good science which a biblical worldview underscores.

And the fruit of such a consensus? It was swept under the rug politically. Roe cannot be reversed by a fiat in the other direction by a new Supreme Court decision, nor by the U.S. Senate holding a hearing to show how wrong Roe was. It can only be reversed by a grass-roots consensus on the humanity of the unborn that simultaneously exposes the fiction that abortion is a “woman’s right.” It is instead a woman’s shame, and one that demonstrates the inherent male chauvinism of the abortion-rights mind-set and industry.