Roe v. Wade is not just about abortion.
The controversy surrounding the decision in Roe v. Wade has focused on two slogans: “Right to life” and “A woman’s right to choose.” The real issue, however, is not about abortion. The real issue is whether women are human beings created equal with men and entitled to the integrity of their own bodies.
It’s all about power
The history of the human race is all about power. Those with power are extremely reluctant to share it and will fight to the death to keep it. The quest for power over people and resources is at the heart of war, slavery, murder, and rape.
What made the United States of America different and the American Constitution unique is that the founders recognized that the ultimate power of sovereignty was in the People and when they created the American Republic they proudly announced, “We the people…” The founders forthrightly declared that the People were the source of all political power in the United States.
Acknowledging the sorry lessons of human history which show that those with power are unwilling to share it, the founders created a Constitution which shared the sovereign power of the people among three independent but cooperative government units: a bicameral Legislature of regionally elected representatives—a Congress elected regionally by popular vote and a Senate in which each state had equal representation regardless of population—to whom the sovereign People granted the power to legislate; a President elected in a nationwide plebiscite by all the sovereign People to execute legislation and ensure that central government services were provided; and a Judiciary appointed by the President subject to the approval of the Senate which would resolve “cases and controversies.”
Who are the “People?”
During the Eighteenth Century, only a limited number of individuals were recognized as “People” for the purpose of allowing them to wield political power. People in those days were men who owned real property or some other form of tangible personal wealth.
Slavery and the oppression of indentured servitude has been an element of human society since the dawn of human history. The concept of human rights, much less civil rights, was considered a matter for philosophers to argue about but had no place in the real world at the time.
Before the American Constitution was adopted, however, a courageous group of British colonials had presented to King George III and the world a Declaration of Independence which was essentially a declaration of fundamental human rights. Because the British monarch claimed the divine right of kings, his American subjects went to war for their independence.
Since the days of the Constitutional Convention, the American People have engaged in a number of conflicts and wars to protect and preserve the power of their People as a nation-state. Over the years since the Constitutional Convention, the number of People allowed to exercise political power has grown to include men who did not own real property or other forms of tangible wealth. After the War Between the States, our Civil War, it came to include former slaves, and finally during the 20th century, at long last, women.
All people have “human” rights
Nevertheless, throughout the world even basic human rights much less the civil rights which are supposed to characterize civilized society are denied to women. Here in the United States women have the right to vote and even become politically active, however, women are still subject to wage and employment discrimination.
The real issue which the Supreme Court of the United States tiptoed around in Roe v. Wade is the fundamental human right to bodily integrity. This is a right that is so fundamental to all human beings that it is one of the first rights which those in power seek to limit, restrict, and deny.
Even though in vitro fertilization has reached the point where a human embryo can be created from the union of a human egg cell harvested from the body of a woman and any available sperm cell and then grown through a number of cell divisions outside the uterus of a woman to the point where they can be implanted in any available surrogate uterus with a reasonable probability of eventually becoming a fetus; that embryo will never become a human being unless it is carried, nourished, and sustained for approximately nine months in the uterus of a woman. Those are the inexorable “facts of life.” All the philosophers and theologians in the world cannot change the biology, biochemistry, and physiology of human reproduction no matter how clever their arguments might be.
Without a mother no child can be born. All human beings are of women born. These are the uncontroverted facts that any court must pay judicial notice to before it can address any issue involving human reproduction.
The Ten Commandments
The Anglo-American adversary judicial system arises from an amalgam of the Roman natural law tradition and the Judeo-Christian Decalogue, the Ten Commandments. The political controversy surrounding Roe v. Wade is rooted in the meaning of the Commandment, “Thou shalt not kill.”
Unfortunately, the author of the Decalogue whom many believe to be Almighty God, did not provide any explanatory text with the Ten Commandments. The Author of the Decalogue left it to each generation of human beings to develop their own interpretations of the Commandments. Those interpretations almost always involved “exceptions” to the plain and unequivocal admonition of the Commandment.
Exceptions were quickly found for the Commandments, “Thou shalt not kill,” and “Thou shalt not steal.” Taking the life of another human being — killing — quickly became acceptable and even morally justifiable under a variety of circumstances such as the infamous “just war.” Capital punishment was routinely accepted as justified under a variety of circumstances as was killing another human being in “self-defense.”
Sharp business practices such as puffery in advertising and marketing and the doctrine of “caveat emptor” — let the buyer beware — as a justification for outright fraud are exceptions to the Commandment, “Thou shalt not steal.” The growing list of exceptions to the Ten Commandments is limited only by the greed and avarice of human beings acting for personal gain and self-interest.
Of human bondage
The 13th Amendment marked the final meaningful statement of the American Civil War, but since then the Supreme Court of the United States has studiously ignored the fundamental principle of the Declaration of Independence, that all men are created equal and endowed by their Creator with certain unalienable rights… .
Regardless of the expedient compromises which the founders were forced to accept as the price for establishing the United States of America as a nation-state, the idea of slavery was so inherently repugnant to the founders who were steeped in the Natural Law tradition it could only be justified by refusing to recognize that “slaves” were human beings just as their “Masters” were. The myth that there were different kinds of “human beings” and that skin color and gender established what kind of human being an individual was has been an accepted belief among American jurists since the founding of our nation. It still permeates American jurisprudence. The equality of all human beings has yet to be fully recognized, much less accepted by, the American judiciary.
There is no question that all human beings have been endowed by their Creator with a fundamental right to life. However, that right to life attaches to a human being capable of independent life outside the womb. Medical technology has made it possible for a human fetus which has reached a certain level of development to grow and continue to develop outside the uterus of their mother and when that occurs by way of premature birth that human fetus has a right to life. However, while that fetus is still in utero and dependent upon their mother for life, they do not yet have an independent “right” to life.
End the hypocrisy
In the New Testament of the Christian Bible, Jesus is reported as calling sanctimonious hypocrites “whitened sepulchers.” We must not let our courthouses become whitened sepulchers and citadels of hypocrisy.
At this time in American history, Roe v. Wade is not about abortion, it is about human rights and the bodily integrity of women. It is about whether the coercive power of the state should be permitted to force a female human being — a woman — to grow, nurture, and carry an anatomical and physiological burden within her body until it is capable of life outside of her womb.
If the Constitution of the United States truly protects human rights, women must be entitled to maintain the integrity of their own bodies. In the United States and most civilized countries rape, the unwanted violation of the bodily integrity of a woman is considered a crime. Compelling a woman to carry an unwanted embryo or fetus to term is no less a violation of her bodily integrity. Every woman must be free to choose whether to carry an embryo or fetus to term without coercion by the state. It is the woman’s choice not the choice of legislators.
When the next challenge to Roe v. Wade reaches the Supreme Court of the United States regardless of who the judges are, they must be presented with only one issue —the absolute right of every woman to the integrity of their body. The issue must never be allowed to be about whether an embryo or fetus might be capable of life outside the womb. The issue is the inherent human freedom of a woman to determine the use to which her body and her organs will be put.
The founders crafted our Constitution in order to assure the human rights they had declared in the Declaration of Independence to each of the sovereign People of the United States. While their concept of People was limited by the culture and mores of 18th century England, their understanding of human rights clearly included the right to bodily integrity. The Supreme Court of the United States must finally declare that men and women are truly equal and share the same human rights and civil liberties.
It is time for the entire civil rights bar to join together and to present a single unequivocal challenge to any law promulgated by any state or the federal government which in any way limits or infringes the right of a woman to the integrity of their own body. The action must be crafted carefully so that no matter what the ideology of the individual Justices might be the Supreme Court of the United States cannot avoid an unequivocal decision on whether women are human beings and entitled to the integrity of their own body.