It was determined in Roe v. Wade that the State of Texas "failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest."
Further, Blackmun stated that the argument that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment" was "outlined at length and in detail by the well-known facts of fetal development." However, upon argument "the appellee conceded" that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment."
It was further noted that "the Constitution does not define 'person' in so many words." In fact, "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 prenatal application. All this, together with our observation 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."
He added, "It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth."
He noted that this belief was predominant, although not unanimous with all major religions. He reiterated the significance of the common law, the notion of "quickening" and the physician's stance on "viability". He clarified the defining of viability to the infant's ability to live outside of the mother's womb. He even included the official Roman Catholic position on the "ensoulment" theory, which recognizes the existence of life from the moment of conception.
Finally, he added that, "The unborn have never been recognized in the law as persons in the whole sense."
Regarding the State's position in preserving the rights of the unborn the Justice stated, "With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. [Viability is considered 24 to 28-weeks.] If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother."
The Justice's conclusion was that the Texas statutes were "unconstitutional and must fall" therefore siding with Roe versus Wade. The argument, and the battle, however, have raged on and continues to this day.
I realized when reading Justice Blackmun's Opinion that I had never known his words before, nor those of concurring Justice Stewart. I had, however, long heard of Justice Rehnquist's dissenting views. Perhaps this is the crux of the problem.
We have a tendency to proliferate the point of view that most closely agrees with our own, or that which a particular position wants us to know, but in a nation built on the premise of laws it would seem only right to share all the views. Only then can an informed citizenry make up their own minds.
For me, I believe one must ask themselves if they would want the government to dictate what they can and cannot do with regard to their own body. Is it the right of a governing body to determine the fate of another irrespective of a crime? Should we, each of us, decide for our neighbor how they should live their lives and populate or not populate this world we all share? Is this delving into another's personal domain our legal right? I believe for most of us the answer would be no.
If, however, you deem otherwise, particularly in the case of forcing an unwanted child unto a reluctant mother, who then should become responsible for this new life? Should it be you? Should it be the government? (And certainly we all know how well the government functions.) Will this child be doomed to a life of foster homes or perhaps an abusive household? Who will feed and educate and clothe this unwanted child for 20-years or more? Considering that life is so precious why then would we want to force a pregnancy upon an unwilling mother?
Our learned founding fathers determined that each of us was entitled to the right of privacy. As Jus-tice Stewart wrote in his concurring opinion stating that they recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Why can't we?
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