By STEPHEN M. KRASON
Since the leaking of Justice Samuel Alito’s draft opinion in the abortion cases currently before the Supreme Court, there has been much excitement among pro-lifers about the distinct possibility that the Court’s 1973 Roe v. Wade and Doe v. Bolton decisions that had the effect of legalizing abortion, essentially until birth, would finally go into the dustbin of history. It should be understood, however, that it appears that the best that will happen if reversal occurs is that abortion will become a states’ rights issue.
That would essentially put the country back to where it was in the 1960s, when the push got underway to “liberalize” and then repeal outright the restrictive abortion laws then in place. Already, some states are enacting restrictive abortion laws or saying that the ones they have kept on the books from before 1973 will be enforced anew. So, reversing Wade and Bolton will certainly substantially reduce the number of abortions and protect the lives of many of the unborn nationwide. What will almost certainly occur, however, is that some states will become abortion meccas: those on the coasts and such other states as Illinois — where Chicago’s mayor is already acting to facilitate abortion access — Colorado, and possibly New Mexico.
Even a “states’ rights” decision will be desirable if it occurs, but we should understand that the only truly correct decision, which is most in line with the American constitutional tradition, would be a declaration that the unborn, like all other persons, have an inherent right to life. So, states then would not be free to decide to permit abortion for any reason just like they cannot permit other innocent persons to have their lives intentionally taken away.
The Supreme Court’s opinions in Wade and Bolton presented a drastically twisted picture of the history and common law background of abortion. They followed the skewed writings of the major scholarly advocate of legalized abortion of that period, Professor Cyril Means of New York Law School, who was cited by the Court. Probably the Court’s majority wasn’t so concerned about being faithful even to their flawed conception of the common law background, however, as they were using it as a justification for their predetermined position driven by ideology.
In fact, when one seriously examines the common law background on abortion a strong case can be made that it recognized the unborn child’s right to life. The thinkers who were probably the most authoritative sources on the common law, Edward Coke in the seventeenth century and William Blackstone in the eighteenth, both asserted this. In his great legal treatise, the Institutes, Coke wrote that under the principles of the common law — which form the background of our constitutional law tradition and were the foundation generally for American law — if someone struck a pregnant woman and caused her unborn child to die, that person would be guilty of a “great misprision.”
Some commentators wrongly translated this to mean a misdemeanor, a lesser criminal offense. In fact, a misprision was a high crime almost bordering on a capital offense. Blackstone followed Coke’s understanding about the common law on abortion and in his great work, the Commentaries, said that the right to life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” For Blackstone, the right to life was part of the right of personal security, which he called an “absolute right.” Following the biology of the time, people believed that the unborn child’s life began at “quickening,” when the child first moved in the mother’s womb.
It was only with the advanced biological understanding of the early nineteenth century that it was understood that life began at conception. It was at that point, as statutory law was generally replacing the common law as the means of stating what were criminal offenses, that criminal statutes punishing abortion were enacted (although, as stated, the common law historically punished it as well). The point is that our legal tradition recognized the unborn person as having the right to life as soon as it was understood that life was present. The early American statutory law against abortion was not enacted just to protect the woman from incompetent abortionists — as Means and the Wade/Bolton Court claimed (and so they held that with medical advances abortion now was supposedly safe and so should be legalized) — but also, as pro-life legal scholars have pointed out, to protect the child.
Persons Have The Right To Life
If the Justices on the Supreme Court seeking to overturn Wade and Bolton don’t want to go back to the common law, they can look to the history of the Fourteenth Amendment enacted after the Civil War. Legal scholar Joseph P. Witherspoon pointed out that the history of that period — particularly the fact that the Fourteenth and the other post-Civil War amendments and the state anti-abortion statutes (triggered by the new biological understanding of when life begins) were being enacted at the same time — provides a definitive conclusion that the drafters of the Fourteenth Amendment understood the unborn to be persons under the Constitution. So, like other persons they have the right to life.
Moreover, in the pre-Wade/Bolton era, courts in various states had accorded what effectively were legal rights in different areas of the law, such as torts and property law, to unborn children. It goes without saying that they have the right to life in the first place if they are going to have other legally enforceable rights.
So, even if a “states’ rights” decision by the Supreme Court will have the virtually certain effect of reducing the number of abortions, it will not give the unborn the legal protection they are entitled to under our constitutional and common-law tradition. That requires a decision that will acknowledge and specifically be grounded on — and will stand as a firm, ongoing precedent for — the fundamental right to life of any person, born or unborn.
Such a decision will bring legal abortion to a grinding halt across the country.
(Stephen M. Krason is professor of political science and legal studies at Franciscan University of Steubenville, associate director of the University’s Veritas Center for Ethics in Public Life, co-founder and president of the Society of Catholic Social Scientists, and a lawyer. He is the author of Abortion: Politics, Morality, and the Constitution and other books.)
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