Questioning The Constitutional Basis

Of Roe v. Wade

To the Editor:

Under current US law, which is not a person?

a) A Supreme Court judge

b) A corporation

c) An unborn child

(Hint: Who can hire the fewest lawyers?)

If you answered (b), you are wrong; corporations are “persons” under the law because of a precedent set in Santa Clara County v. Southern Pacific Railroad. The abortion debate does not hinge on religion or “when life begins”; scientifically speaking, as every genetic text for the last 50 years will tell you, uniquely human life begins at conception. Rather, the debate concerns when a human being is a person to be protected. As a result of Roe v. Wade, (c) is not a person.

I do not share Alexandra Hart’s horror at allowing the people, through their state legislatures, to make their own decisions if Roe v. Wade is overturned. Rather than turn to Planned Parenthood, a multimillion dollar abortion provider, let’s look at a less self-interested group: pro-abortion liberal intellectuals and constitutional law professors, who support the result but not the opinion. A few examples:

Laurence Tribe of Harvard Law School, arguably our most well-known constitutional law professor: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

 Richard Cohen in the Washington Post: “The very basis of the Roe v. Wade decision — the one that grounds abortion rights in the Constitution — strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.”

Jeffrey Rosen, the Legal Affairs Editor of The New Republic: “It seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.”

Michael Kinsley: “Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching.”

Edward Lazarus, former clerk to Harry Blackmun: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose.”

John Hart Ely of Yale, Harvard, and Stanford Law Schools, and one of the most-cited constitutional lawyers in history: Roe “is not constitutional law and gives almost no sense of an obligation to try to be….What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”

Again, all of the above support abortion. As for those opposed to Roe v. Wade who, for nonreligious reasons, do not support abortion, I recommend the following: Feminists for Life at feministsforlife.org, the Atheistic and Agnostic Pro-Life League at godlessprolifers.org, Libertarians for Life at L4L.org, and (partly religious, but its primary arguments are not), Black Genocide at blackgenocide.org.

Mary Taylor

31 Jeremiah Road, Sandy Hook March 6, 2006