Roe v. Wade: A Constitutional Travesty

This week marks the 40th anniversary of Roe v. Wade, the landmark Supreme Court case that imposed legalized abortion on the entire nation.  Many Catholics will, as is proper, pay particular attention to the intellectually indefensible and morally disastrous core principle of Roe: that there can be a right to kill a human being who is not guilty of any crime and who is not an aggressor.  It is also worth reminding ourselves, however, that Roe is also a train-wreck as an act of Constitutional interpretation.  This is an especially important point for American Catholics, and all pro-life Americans, since it reminds us that the abortion right is not really part of our constitutional regime but instead an abuse of it.

Roe claims that there is a constitutional right to abortion.  The obvious infirmity of this claim is — as Justice Scalia never tires of pointing out — that the word “abortion” is never used in the Constitution.  The document is utterly silent on the question, which leaves states free to legislate on it according to their own best judgment.

But, defenders of Roe will respond, abortion is an aspect of the right of privacy.  This, however, gets us no further.  The Constitution also says nothing about a right of privacy.  To be sure, there are certain passages — say, in the 3rd and 4th Amendments — that can be understood to protect specific kinds of privacy.  But there is nothing that adds up to a substantive right of privacy placing some kinds of acts beyond the government’s power to regulate.

Finally, the defenders of Roe might respond that just because the right is not articulated explicitly in the text does not mean that it is not to be protected.  There is a tradition of the Supreme Court intervening to protect non-textual rights that are thought to be fundamental.  Of course, that the Court has done this from time to time does not make it right.  Nevertheless, even if we grant that this kind of ruling can be appropriate, it does not save Roe.  The usual standard for protecting a non-textual right is that it is deeply rooted in the nation’s traditions.  Here we might think of the presumption of innocence in criminal procedures, a principle that is almost like the legal air we breath but that is not mentioned in the Constitution.  There can be no credible claim that a right to abortion is deeply rooted in the nation’s traditions.  It was commonly understood as wrong under the common law, and numerous state statutes going back into the 19th century treated it as a crime.  Given that historical background, the idea that a right to abortion is deeply rooted in our traditions is impossible to swallow.  In any case, when they are being candid most liberals speak about the right of abortion as a manifestation of “progress,” which is itself an admission that it is not to be found in our traditions.

I suppose that many proponents of abortion will reject these constitutional arguments out of hand as arising from conservative or Catholic moral opposition to abortion.  They might be interested in the following article, in which the Washington Times‘s Tim Carney provides excerpts from the comments or writings of many highly intelligent public figures, many of them constitutional lawyers, who support abortion rights but who also admit that the reasoning in Roe v. Wade is an intellectual shambles.



35 thoughts on “Roe v. Wade: A Constitutional Travesty

  1. rightactions says:

    Roe is also a train-wreck as an act of Constitutional interpretation…

    [T]he reasoning in Roe v. Wade is an intellectual shambles.
    –Carson Holloway

    Why, when America’s pro-abortion party twice ran a presidential ticket on which both candidates were touted as experts, professors even, on constitutional law, didn’t anyone ask them whether they agreed or disagreed with such statements?

  2. abadilla says:

    “Many Catholics will, as is proper, pay particular attention to the intellectually indefensible and morally disastrous core principle of Roe: that there can be a right to kill a human being who is not guilty of any crime and who is not an aggressor.”
    Isn’t it sad you have to state “many” Catholics instead of “all” Catholics because I can not see how any Catholic can defend abortion legally or morally.

  3. Paulspr says:

    Lawyers for the Catholic Church recently argued that unborn fetuses are not “persons” and have none of the legal rights that persons are entitled to.

    1. Msgr. Charles M. Mangan says:

      J.M.J. Paulspr. please don’t obscure the core principle: human life is sacred. No lawyer, even one representing some Catholic entity, can alter the immutable Law of God. Abortion is evil.

      Thank you for the post, Mr. Holloway.

      1. Paulspr says:

        According to the Catholic Church and their high priced lawyers, an unborn fetus is not a person. It seems like the Catholic Church has decided to embrace Roe v. Wade. At least if it saves them a few bucks.

        1. Chelsi Creech says:

          1) A Catholic hospital does not speak for the Catholic Church, anymore than the “Nuns on a Bus” spoke for the Catholic Church
          2) The lawyers seem to be making the argument that, regardless of what the Church teaches, the Law in Colorado does not recognize the unborn as persons under the law and therefore can have no “wrongful death” suits filed against them. That does not mean they like the law; it does mean they think the law should be applied as it is written. They should be sued for something a secular hospital couldn’t be sued for because their beleifs are different. It has little to do with Church belief and more to do with secular Law.

          1. Marvin Derks says:

            Why did this Catholic hospital allow their lawyers to do this if it’s against Catholic teaching? Answer: money.

          2. Chelsi Creech says:

            I point you again to both of my statements. The first being that the lawyers of a Catholic hospital don’t speak for the Church in any way. Secondly, the lawyers (and the Church) are well with in their rights to say “Hey! Under the law you say they don’t deserve protection. You can’t sue us for something that isn’t illegal under the law, just because we think the law is wrong.” It points out the inconsistency of the law: either the unborn are children and deserve all the protection of the law, or they’re not, in which case they can’t have “wrongful death” suits filed for them. This has been pointed out before in cases where murders who kill a pregnant woman can face two counts, one for the death of the mother, and one for the death of the child. It is inconsistency in the law that is the problem, not the Church. The Catholic Hospital allowed their lawyers to argue in a way consistent with the law, end of story. It has nothing to do with Churhch teaching one way or another.

          3. abadilla says:

            “Money?” Perhaps you are correct, but that doesn’t mean any lawyer can suddenly change or compromise the moral teaching of the Church and the moral teaching is utterly clear even for ‘Catholic” lawyers who should know better.
            While I was on a retreat I read a message from you I can’t find now. You asked me what is a “perfect idiot?” Here it is, those of us who are believers are perfect idiots to many secularists and atheists because they presume, wrongly, that we just follow Church teaching blindly without using our reason.

          4. Marvin Derks says:

            That’s may be an example of a perfect idiot but it’s not a definition of a perfect idiot.

          5. abadilla says:

            “Answer: money.” You don’t know this for certain, it is a “feeling” on your part without any data to prove your point, right?

          6. abadilla says:

            The irony of this whole debate is just amazing. Here in California a fetus has no rights and can be butchered by abortion, but if a pregnant woman is involved in an accident and both she and her child dies, the one that hit her car will be accused for the murder of the woman and her unborn kid. Now, if she were alive and were to go to a clinic to get an abortion, no one would call it “murder.”

          7. Paulspr says:

            This is not true at all.

          8. abadilla says:

            How is it not true?

          9. Msgr. Charles M. Mangan says:

            J.M.J. Regrettably, you are right, Abadilla. Paulspr doesn’t add any proof for his dismissal of your assertion. You are absolutely correct.

          10. abadilla says:

            Well, stating that something is not true, is simply not enough. Why is it not true or am I imagining what goes on in California regarding the existence of a fetus and how killing the fetus is considered a crime if the mother is killed even accidentally and the fetus dies.
            It reminds me of the stupidity in public schools here in California where teachers and even nurses can’t dispense pain killers without the consent of the parents, yet, if a young lady wants to have an abortion, she can certainly have one “without” a parent’s consent.

          11. Paulspr says:

            The catholic hospital is under the authority of the bishop

          12. abadilla says:

            Not always. Sometimes it is under the authority of a religious order.

          13. Chelsi Creech says:

            In theory, yes. But so are the nuns who spoke contrary the bishops. The point being, the bishops have not approved this argument, as shown in the article on this site describes. The bishop has denounced the argument and is investigating it at the moment. “Catholic” institutions do things that are uncatholic all the time…but those dissenters do NOT change the teachings of the church. Anymore than a member of Obama’s administration stating something contrary to the president’s opinions would change Obama’s opinions.

        2. Msgr. Charles M. Mangan says:

          J.M.J. Lawyers aren’t the Church.

        3. abadilla says:

          No, it seems that some Catholic lawyers are as confused as you and others here as to when life begins and the sacredness of human life. Several lawyers teaching some asinine teaching, is not the same thing as the bishops and the Pope teaching something official. Get it through your head Paul, only the Magisterium speaks for the Church, not the nuns on the bus, the liberal and morally bankrupt woman’s religious conference, dissenting theologians, etc. The Church teaches clealy that life is present since the moment of conception and must be respected until nature takes its course, period

          1. Marvin Derks says:

            Lawyers always review the case they plan to present to the court to their clients first. The “Church” had every opportunity to tell the lawyers not to proceed. Apparently the Church didn’t tell them not to proceed. Please correct me if I’m missing something.

          2. abadilla says:

            Marvin, I suspect you and Paul, and others are happy because the lawyers indeed represent “your” point of view on the unborn, but they certainly do not represent the Church’s teachings. Why is it that the Church didn’t stop those lawyers from making fools of themselves, is beyond me.
            These lawyers remind me of my students at Model United Nations who years ago represented the Vatican and one of them said in public that the position of the Vatican was clear, that every govenment should distribute contraceptives. Where the kid got such an idea, I stll don’t lnow.
            The wonderful thing about what is Catholic and what IS NOT Catholic is easy to find because we have its of authoritative ecclesial documents telling us what is and what is not Catholic.

      2. Marvin Derks says:

        Human rights is the essence of our existence. Those rights are given at birth. To suggest that a fetus has rights that deny a woman the right to determine when she will give birth is, in my opinion, against “the immutable Law of God.”

        1. Msgr. Charles M. Mangan says:

          J.M.J. Life begins before birth, Marvin. Neither you nor I can change that.

          1. Marvin Derks says:

            Human rights begin at birth and neither you nor I can change that.

          2. abadilla says:

            Monsignor, I’m sure you meant conception, not birth, and Marvin, who holds the position that a fetus has no rights, is already using your words to make his point.

          3. Msgr. Charles M. Mangan says:

            +J.M.J.+ Thank you, Abadilla. Since Marvin holds and routinely argues that human life and rights begin at birth, I wrote “Life begins before birth” to offer the alternative to his point. I could have written “Life begins at conception,” which, of course, the Church–and you and I–hold.

          4. abadilla says:

            Thank you Monsignor. I know that some people here are tempted to play with words particularly when they favor those words to obscure an issue, thus my message to you.

          5. Msgr. Charles M. Mangan says:

            J.M.J. May the Two Hearts reward you, Abadilla. In this age of bitter hatred for Christ and His Beloved Bride the Church as well as unrelenting theological dissent, we must look out for one another. I am grateful, Abadilla. Many thanks again.

          6. abadilla says:

            Thank you Monsignor. What is particularly offensive to me is people who call themselves “Catholic” while denying every church teaching under the sun, and them we have the secularists for whom the teachings of the Church are, at best “extreme,’ coming into CV to hurl their lies at all of us.

          7. Msgr. Charles M. Mangan says:

            J.M.J. Yes, Abadilla. Paulspr has shown little regard for the Truth.

          8. abadilla says:

            And it is particularly galling to lecture others about human rights, bigotry and hatred when one shows little regard for the truth.

    2. Russell Lewis says:

      Yeah, imagine that. When it comes to abortion, they are little people. When it comes to the “bottom line,” they aren’t.

    3. abadilla says:

      I was not aware that “lawyers” now speak for the Catholic Church. I thought that bishops in communion with the Pope, speak in the name of the entire Church and on behalf of the Church’s founder, Christ. Foolish me. I actually have to come to CV to read Paul to learn that now lawyers speak for the Church. On Monday and Tuesday I will teach my 137 students that bishops and the Pope do not speak for the Church, lawyers now do.

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