By: Mary Mostert, Editor, MONTHLY MONITOR
May 8, 1997
Reprint from August 1996 Michael Reagan MONTHLY MONITOR
When the Supreme Court Decides Blacks or the Unborn are not persons Does that make it moral or true ?
By Mary Mostert
America has been forced to stumble through the moral rubble left behind by the United States Supreme Court's decision in Roe v Wade, 410 U.S. 113 (1973). This decision was amazingly similar to the United States Supreme Court's decision Dred Scott v Sandford, 60 US 393) in 1857 which declared that "slaves are a subordinate and inferior class of beings, who ...had no rights or privileges but such of those who held power and the government might choose to grant them." Justice Blackmun wrote in the Roe Vs Wade that unborn children are "not included within the definition of 'person' as used in the Fourteenth Amendment." This decision, that the unborn are not "persons" as used in the Fourteenth amendment, not the "right to privacy" which is so often cited in Roe v. Wade is the crux of this nation's national debate on abortion.
If, as the Supreme Court held, slaves and the unborn are not "persons" what are they? They become a form of property. The legal impact of Dred Scott v Sandford, 60 US 393 was to free slave owners to abuse or even kill an unruly slave "property" if they so chose. The legal impact of Roe v Wade, 410 U.S. 113 was to free pregnant women to abuse or even kill an unborn infant if they so choose.
Both decisions eventually created a moral and cultural crisis in American culture. The slavery issue came to a head in the presidential election of 1860, when Abraham Lincoln was elected. During Lincoln's administration, a Republican Congress and President insisted upon passage of the 13th and 14th Amendments, which gave to black people the rights which the Supreme Court had concluded did not exist in the original document for black people. In the current election year, the identity of the unborn has come to a head in the Congressional debate over the passage of HR 1833, the Partial Birth Abortion Ban bill by the House and Senate, and the Clinton veto of the bill.
In his veto message on HR 1833 President Clinton used as props five women who had late term, seven to eight month abortions, and used the procedure in which the infant was turned around in the womb to deliver it feet-first. However, before the baby's head is delivered, the abortionist stabs the base of the infant's head with a pair of surgical scissors (without anesthetizing the baby), inserts a tube into the hole and sucks out its brains. The American Medical Association does not recognize this as a valid medical procedure since there are other methods of saving the life of the mother in a late term abortion that are not as dangerous to the mother's health. The only advantage to this procedure is making sure that the infant is dead before it has a chance to breath thereby becoming a person protected by the Constitution of the United States.
Three of the five women indicated that their reason for requesting the partial birth abortion was a diagnosis of Trisomy 13 or hydrocephalus condition in the baby. The Hydrocephalus Association, which is an education and advocacy group for parents with hydrocephalus children states that the condition affects one in every 500 children born. While there is no known cure for the condition, the association states that "the most effective treatment is surgical insertion of a shunt...placed into the ventricular system of the brain." Most parents will sacrifice to make sure that their child has the opportunity to live. Most people believe that such dedicated, loving and caring parents deserve our concern and support.
President Clinton disagreed. He said in his veto message, about the five women who chose instead to abort their handicapped child through a late term partial birth abortion, "We need more families in America like these folks. ...This is what this veto is all about." He also said that these conditions occurred in "just a few hundred times a year." Actually, Trisomy 13 causes hydrocephalus. Trisomy 21 causes Down's syndrome in approximately one in every 800 births. Approximately 13,000 babies a year are born with the same conditions which afflicted the unborn infants of three of the five women President Clinton used as props when he vetoed the Partial Birth Abortion Ban act. If those five women had given birth to babies with hydrocephalus, and surgical scissors were plunged into their brains after taking one breath, it would be the murder of a handicapped "person."
Strangely, a ten year old girl with hydrocephalus appeared with Senator Dole and Rep. Newt Gingrich as they appealed to President Clinton to sign a bill which would reform product liability. The silicone shunt used to keep the bright little girl alive is no longer made because companies can no longer get the silicone - since the courts imposed a huge penalty on companies that made silicone breast implants. President Clinton vetoed the bill which would have ensured the silicone being available to save the lives of hydrocephalus victims. J
ustice Blackmun, in his Roe v Wade decision stated that after the point in time when "the fetus become viable, the state may prohibit abortions altogether except those necessary to preserve the life or health of the mother." This statement is extensively used by those supporting unlimited abortion rights. The "health of the mother" can be used, and today IS being used, to cover nearly every possible discomfort a pregnant woman might experience - even an elevated blood pressure. President Clinton complained that an exception for the life of the mother was not enough and that HR 1833 needed an exception for the health of the mother as well which would make the procedure available to women whose blood pressure goes up or who claim the birth of a handicapped child would disturb their mental health.
Interestingly, President Clinton never addressed the question of why a ban was permissible at all. Even without an exception for the health of the mother, a ban recognizes the life of the unborn. If it is the life of an unborn person, in effect President Clinton and his supporters are saying that the comfort or the health of the mother is more important than the life of the unborn child. There is further hypocrisy displayed by feminist groups which scream "tyranny!" when the State seeks to protect the life of the unborn, yet demand that the Food and Drug Administration prevent women from receiving silicone breast implants. Apparently, women do not have unlimited "control over their own bodies" if they would like a breast implant, made from material also used for brain shunts to save the lives of babies with Trisomy 13 ailments.
That total lack of simple logic in this debate, to say nothing of the dearth of ethical principle, boggles the mind and demonstrates a moral vacuum. The Supreme Court constitutionalized this moral vacuum in 1973 in Roe v. Wade, 410 U.S. 113 by its tortured pursuit of the historic opinions, not the constitutional basis of determining when a life begins. In deciding the constitutionality of the "right of privacy" Justice Blackmun referred to five sections of the Constitution and 15 prior decisions of the U.S. Supreme Court to verify his statement that the "right to privacy" is an "inalienable right protected by the Constitution." That right to privacy includes matters of personal family matters - which includes birth control and abortion, as well as the rights of parents to educate and teach their children.
However, in determining when or whether an unborn child is a "person" Justice Blackmun referred not to the U.S. Constitution but to "ancient attitudes" towards abortion in Greek and Roman cultures. He mentioned the Hippocratic Oath which doctors have taken for more than 2300 years, in which physicians promise, "I will give no deadly drug to any; though it be asked of me, nor will I counsel such, and especially I will not aid a woman to procure abortion." However, Blackmun dismissed it as mere opinion, and examined the opinions of various scholars and previous English and American laws which state when "human life" begins. This led to the majority on the 1973 Supreme Court reaching into the Fourteenth Amendment to conclude that "no state shall deprive any person of life, liberty or property without due process of law through a resort to "substantive due process." The concept of substantive due process apparently means that while the process through which a law was created was constitutional, the law improperly affected an area, such as privacy, and thus the law is unconstitutional. The effect of substantive due process is that a law cannot be constitutional if the law offends five members of the Supreme Court.
The effect of this "on the street" you might say is that a fully viable eight month fetus with a cleft palate or who has hydrocephalus, is not a tiny handicapped person to be protected unless the mother says so. The father who desires to protect and love his unborn child, regardless of his or her imperfections, has no rights. The only person who has the "right" to decide whether the child is a human being or a worthless piece of disposable, unwanted property, is its mother. It is this decision, which basically makes the product of the womb the mother's personal property, not the right to privacy, that has created a moral dilemma of abortion that is so similar to the pre-Civil War dilemma of the Dred Scott decision.
Those who support Roe v. Wade would probably be appalled and in a state of rebellion if the Supreme Court were to issue an opinion striking down a law prohibiting slavery. As appalling as such a decision might be, there would be no legal basis to distinguish that decision from the reasoning applied in Roe v. Wade. Students of constitutional law recognize that the Court once issued an opinion clothing slavery in the garb of constitutional protection, Dred Scott v Sandford 60 U.S. How.) 393 - 1857.
Prior to the Civil War the slavery issue was stabilized to some degree by the Missouri Compromise of 1820. Under this compromise Missouri was admitted as a "slave state" while Maine was admitted as a "free state." Additionally, the introduction of slavery into land west and north of Missouri's southern boundary was prohibited. In 1854, the compromise was repealed to facilitate development of the federal territory. Nonetheless, the decision in Dred Scott would have invalidated the Missouri Compromise.
Dred Scott was a slave who was transferred with his owner to Illinois and later to Wisconsin territory. Subsequently Dred Scott and his owner were transferred back to Missouri, where the owner died. Upon his owner's death Dred Scott sued for his freedom. The basis for Scott's claim was that having become a citizen of Illinois and later of federal territory, free provinces both, he was thus, free.
The Supreme Court held that blacks were not citizens and thus, could not sue in federal court. However, rather than stop there, the Court further held that because Dred Scott had come back to Missouri, the laws of Illinois did not apply to him. The court continued explaining that the federal constitution forbade the Missouri Compromise and thus, Scott's time in a federal territory did not affect his slave status.
In holding that the Missouri Compromise was unconstitutional, the Court reasoned that under the Fifth Amendment property could not be deprived without due process of law. The Court concluded that because a slave was property, a slave could not become free simply by being brought into a particular territory. Under such reasoning if one owned cocaine in a state that made such possession legal, then that person could travel with impunity to another state where possession was illegal. The state passing a law making possession of cocaine illegal would be in violation of due process principles if it sought to enforce its laws and confiscated the property.
As with their decision in Roe v. Wade, the Supreme Court in Dred Scott issued their opinion based on the desired result rather than reasoning from constitutional principles. Such constitutional contortions will allow the Court to reach any conclusion it desires no matter the language that might act as a barrier.
Today, society looks back to the Dred Scott decision and finds it morally repugnant. However, the process the Court used in reaching that repugnant conclusion is the greater risk to America's freedom. The court substituted their own policies and opinions for constitutional law in both Dred Scott and Roe v. Wade, reaching conclusions which declared black people and the unborn to be "non-persons" under the constitution. Rather than resolving either abortion or slavery, the Court, in its efforts to legislate a controversial issue, created national crises in both instances. In the case of the Dred Scott decision, it led to Civil War. In the case of Roe v. Wade, it has led to a growing polarization not at all dissimilar to the polarization that occurred in the 1850's.
The Dred Scott decision brought the issue of slavery to a head in the presidential election year of 1860. It was an issue the American people could no longer ignore and the polarization ended in a bloody civil war, followed by the 13th, 14th and 15th Amendments. The Partial Birth Abortion Ban veto by President Clinton, coming on the heels of Bob Dole's strong support of the Partial Birth Abortion Ban bill, could bring the abortion issue to a head and lead to a strangely similar polarization.