In response to recent claims (including my own in First Things) that Roe aided pro-lifers in unexpected ways, Daniel Williams argues that such views are mistaken. The decision, according to Williams, neither hurt pro-choice momentum nor breathed new life into a fledgling right-to-life movement. Instead, it cut off public discussion over competing constitutional claims regarding the rights of women and unborn human organisms. In other words, Roe has no pro-life legacy.
I agree with Williams that Roe was not a blessing in disguise for pro-lifers, and did not mean to suggest otherwise. Instead, I tried to show how a decision that created an expansive constitutional right to abortion nonetheless offered some important compensating benefits. Like many pro-lifers, Williams seems wrongly to regard Roe as an unmitigated disaster. That is a mistake.
Consider trends in public opinion. Williams neglects the fact that pro-lifers were losing badly in the court of public opinion before they lost Roe in the Supreme Court. According to surveys from the National Opinion Research Center, pro-choice sentiment exploded between 1965 and 1973 before suddenly stabilizing in the aftermath of Roe.
In 1965 a mere 22 percent of the public agreed that abortion was acceptable in cases of economic hardship, but 53 percent of Americans did so by 1973. Likewise, while only 16 percent of the public approved of abortion when married women sought to limit the size of their families in 1965, some 48 percent of Americans did so just eight years later.
During this same period support for the abortion of disabled fetuses rose from 57 to 84 percent. Thus, pro-choice sentiment grew substantially year after year prior to 1973. Indeed, it grew at a much faster rate than support for gay marriage has since 1996, as a recent Pew study makes clear.
Why did pro-choicers stop winning the war for the hearts and minds of Americans in 1973? Of course, we can never know for sure why pro-choice sentiment suddenly ceased its meteoric climb in the very same year that Roe was decided. That would require us to rerun American history without the Roe decision. The most plausible explanation, however, points to the collapse of a grassroots, pro-choice movement working for radical changes in public opinion and policy. If this is right, then Roe did in fact halt some considerable pro-choice momentum. Roe, after all, seemed to end the dramatic liberalization of abortion attitudes and the movement that sustained it.
It is true that the pro-life movement was well organized in many states prior to 1973. But there is little question that the pro-life movement grew in subsequent years and reached new constituencies, especially conservative Protestants. More importantly, though, Roe compelled pro-lifers to engage in a far larger and more diverse campaign of moral suasion. As right-to-lifers turned their focus away from state legislatures and toward the broad American public, it discovered new and innovative ways of reaching ordinary citizens. Pro-lifers built thousands of crisis pregnancy centers, found really creative ways to engage millions of college students, and got better at talking to ordinary citizens outside abortion clinics. Today, there is nothing comparable to these efforts inside the pro-choice movement. Roe is a big part of that story.
How much such differences continue to matter is, of course, very hard to say. Yet it is striking that public opinion may be shifting once again in a pro-life direction. Young Americans are suddenly less pro-choice than older Americans. That is, they are more likely to find abortion unacceptable in the so-called soft cases, such as economic hardship, than their elders. In the latest edition of Understanding Public Opinion, Clyde Wilcox and Patrick Carr report that young Americans are not only less pro-choice than any other age group, but they are also markedly less pro-choice than any young cohort in any previous decade.
This development represents a profound shift from trends in the early 1970s when young Americans were far more pro-choice than their elders. Given the fact that young Americans are both less religious and more supportive of gay rights than their elders, we also would expect them to be the most pro-choice age cohort. Yet they are not. The future implications of this development could be great. As Wilcox and Carr conclude, the long-term stability in abortion attitudes may be about to change.
Roe also changed the way abortion is debated. Williams laments that it ended a serious constitutional debate over competing rights claims. But, if I’m right, Roe may have also broadened the public discussion. Prior to Roe, much of the public debate centered in state legislatures and courthouses. Now it is centered in local communities and engages more citizens in discussions about abortion. The most popular varieties of pro-life activism happen in face-to-face relationships in ordinary American communities, rather than in the corridors of Washington or in state capitols. Moreover, the creation of these many islands of democracy below the level of the state itself has been especially welcome in an era in which partisans of all stripes have lamented the erosion of civic and democratic life.
Even if I am correct, there is no gainsaying the fact that Roe was a remarkable political victory for the pro-choice movement. That is well established. Happily for pro-lifers, however, its legacy is more complicated than that. And if my disagreements with Williams demonstrate anything, untangling Roe’s legacy remains a knotted and difficult question some forty years later.
Jon A. Shields is associate professor of government at Claremont McKenna College.
RESOURCES
“Roe’s Pro-Life Legacy,” Jon A. Shields
“The Real Reason to Criticize Roe,” Daniel K. Williams
“Behind Gay Marriage Momentum, Regional Gaps Persist,” Pew Research Center for the People & the Press
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Comments:
In 1967, in 49 states, abortion was a felony; in New Jersey, it was a high misdemeanor. Twenty-nine states had banned abortion advertising, and many outlawed the manufacture or distribution of abortifacients. Roe was handed down after a huge effort to repeal those laws had failed miserably. It had only been successful in a handful of states. Ballot initiatives to decriminalize abortion had been defeated by majorities as high as 78 percent. In 1972 in New York, one of the few states that had liberalized its abortion laws, the reaction against that was such that the state legislature voted to repeal the state's new abortion law, but Governor Nelson Rockefeller, with typical intolerance of the will of the people where it is contrary to the plans drawn up by godless social engineers, and with *lethal* intolerance of the inalienable right to life of the child in the womb, vetoed the repeal. Roe's illegitimate amending of the Constitution was used to accomplish what just wasn't going to happen by means of the democratic process or by legitimate Constitutional amendment.
The problem with your assertion that the SCOTUS should only apply the Constitution, is this: the constitution protects men and women, human persons one might say. But the whole question in Abortion, is this: is the embryo a full human person.
The essence of a human being is its mind or spirit; but does a very young embryo have that? Aristotle, Augustine and Aquinas, agreed that it does not. Though the recent church c. 1964-8 apparently decided to overrule its two greatest Traditional theologians on this matter, our new Church's decision remains highly problematic.
The Church has rightly over-ruled the opinions of her two greatest theologians for the simple reason that these two men, great though they were in the use of reason, did not know the full facts. Contrary to what you assert, it has never been so clear that, in biological terms at least, human life with a complete complement of DNA begins at the moment of conception. This is the principle reason that the worshippers of Moloch have moved the battleground to the hazy concept of 'personhood'.
“34. It is permitted to bring about an abortion before the animation of the foetus, lest the girl found pregnant be killed or defamed.
35. It seems probable that every foetus (as long as it is in the womb) lacks a rational soul and begins to have the same at the time that it is born; and consequently it will have to be said that no homicide is committed in any abortion.”
were “all condemned and prohibited, as they are here expressed, at least as scandalous and in practice pernicious.”
Aquinas and others didn't believe the soul was present until quickening. Before quickening, whatever was understood to exist that would eventually be "quickened" by a soul, was not alive in the sense that it was not yet animated by a soul. The science of the past wasn't aware that life began at conception. Aquinas' thinking reflects that. He never condoned taking the life of an innocent, living human being.
In the past the Church considered the nature of the crime of abortion differently before and after quickening, or, before and after the child was “alive.” One case dealt with what they believed to be potential human life, the other with human life. Nonetheless, the Didache, a first century Catholic "catechism," explicitly condemns taking the life of the child in the womb without making that distinction. So, from the beginning the Church has taught that it is wrong to take the life of an innocent human being. Science now tells us life begins at conception. Church teaching takes into consideration the findings of contemporary science, and continues to teach what it always has: that it is wrong to take the life of an innocent human being.
Science and common sense tell us that: 1) the embryo is the offspring of humans, therefore the child is human. 2) The new human life is growing, therefore it is alive. 3) The child is completely innocent. 4) It is wrong to take the life of an innocent, defenseless, living human being.
Innocent human beings, no matter what their stage of development, possess the human right to life regardless of the many contradictory and unverifiable theories about just what constitutes a “person.”
Tertullian (160-200) says in his Apologeticum 9:8 “Homo est et qui est futurus; etiam fructus omnis iam in semine est.” (That is a human being which is going to be one; you have the fruit already in its seed – My translation)
In the whole passage, he claims to be giving received Christian teaching and he knew, at first hand, the traditions of the churches of North Africa and Rome.
Tertullian, who, by the by, appears to have been a traductionist, never mentions the question of “ensoulment” and, in its 1987 Instruction, Donum Vitae, the CDF says
“The Magisterium has not expressly committed itself to an affirmation of a philosophical nature, but it constantly reaffirms the moral condemnation of any kind of procured abortion. This teaching has not been changed and is unchangeable.”
Both statements avoid awkward questions about the personality of the zygote, which divides to form monozygotic twins. Clearly, Tertullian’s reasoning loses none of its force, if we amend it to “one or more.”
The Fathers, when they speak, not as theologians, but as witnesses to the Tradition are always to be preferred to the Schoolmen.
"The embryo therefore becomes a human being in the womb from the moment that its form is completed."
-- Tertullian, *On the Soul*, Chp. 37
If Tertullian is referring to the form of an embryo being completed, or if he is referring to the embryo taking a form recognizable as a human being, in either case he seems to think that there is a period where the fruit of human reproduction is not fully human. He was not able to avail himself of the benefits of modern science, so he wasn't aware of the fact that a fully human being exists from the moment of conception. Even so, he concurred with the unanimity of the Fathers in the condemnation of abortion, which the Church maintains to this day, as abortion, abortion inducing drugs and abortifacient contraceptive pills all take the lives of innocent, living human beings.
If one thinks about it , one soon realizes that from conception all that is added to the new human life is oxygen, nutrition and hydration -- none of which add "humanity" to it, otherwise all kinds of creatures would end up human, as they too process those very things from the moment of their conceptions. All that makes a human being “human” is already there at conception in the DNA. So, from conception we have a human being with great potential, not a potential human being, because all that makes the child “human” is already present, and no further "humanity" will be added to it.
Tertullian and the other Fathers can be forgiven for not taking into consideration that which modern science has only recently informed us. What is important is that they condemned abortion. The Early Church didn't need modern science to do that. They possessed all they needed for that: the guidance of the Holy Spirit. It is as true today as it was when Christ first explained it to the Apostles of the primitive Church: “He who hears you, hears Me.”
In the Apologeticum, Tertullian is expressly giving common teaching, “With us, homicide being once for all forbidden, we may not destroy even what is conceived in the womb, while as yet the human being derives blood for its sustenance [dum adhuc sanguis in hominem delibatur]. To prevent a birth is to hasten homicide; nor does it matter whether you take away a life [animam] from one that is born, or destroy one that is coming to the birth. That is a human being which is going to be one; you have the fruit already in its seed.” [My translation] The last sentence may well have been traditional.
To call the zygote, “a human being” raises problems. If zygote A divides to form B and C, then B and C cannot both be identical with A. If they were, then, by transivity of identity, B and C would be identical with each other: which is absurd. The Apologeticum formulation. avoids the question of identity entirely.
I am not sure we have an issue. Tertullian condemned taking the life of the child in the womb, as did the Early Church, as the Church always has to this very day.
As for zygotes having souls:
"Both statements avoid awkward questions about the personality of the zygote, which divides to form monozygotic twins. ... To call the zygote, “a human being” raises problems. If zygote A divides to form B and C, then B and C cannot both be identical with A. If they were, then, by transivity of identity, B and C would be identical with each other: which is absurd."
Human life is alive because it is animated by a soul. If it isn't animated by a soul it is a human corpse, not a human life.
We know only a living human zygote can divide. A zygotic "corpse" cannot. So we know the zygote that divides was animated by a soul, or it would have been a zygotic corpse, incapable of dividing. If the resulting twins exhibit metabolic function then we know they are both animated by a soul, because they wouldn't exhibit such functionality otherwise -- they would be dead. Is the soul of one of the twins the same one the original zygote had? If not, what happened to the soul of the original zygote? Until we know how to construct "soul-o-meters" that can detect and identify human souls, we will just have to leave the answers to those questions to God. All human life, including the human zygote, possesses a human soul, or it isn't human life at all, it is merely a human corpse, however small that corpse may be.
The Supreme Court has no authority to create new constitutional rights. What is truly a “constitutional right” is defined by the will of the people as expressed by the Founders in the Constitution. There simply is no legitimate way to create a new “expansive constitutional right” other than with a constitutional amendment ratified according to Article 5. For constitutional government to remain, new constitutional rights must be created the way the Constitution specifies that should be done, not by Supreme Court justices deciding they have discovered them in invisible emanations from constitutional penumbras, especially when based on their alleged discovery, they not only strike down laws enacted by the elected representatives of the people that have been in place for over a hundred years, but also establish state-sanctioned killing of innocent human beings in stark contrast to the clear meaning of our Founding document, the Declaration of Independence, which makes clear that the very purpose of government is to protect the inalienable rights of humanity, the first of which is the right to life. (Those who don't understand that the Declaration is our founding document need to read John Quincy Adams' *Jubilee of the Constitution* speech.) Amending the Constitution the way Roe did was hammering the last nail in the coffin of constitutional government.