• Matt O'Reilly

Maybe, Maybe Not: Reflecting on Roe 40 Years Later



Forty years ago today the Supreme Court handed down it’s decision in the landmark case of Roe v. Wade making abortion-on-demand a constitutionally guaranteed right in every state. I’ve always been pro-life (my parents left me no choice), but I’ve never before read the Court’s decision in this all-important case. So, yesterday I decided to learn for myself just what it said. The Court’s opinion was written by Justice Harry A. Blackmun. The entirety of the document is quite interesting; some of it struck me as naive, though I’m certain it was not; one aspect was shocking. 

It appears that the State of Texas made the argument that, “apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy and that therefore the State has a compelling interest in protecting that life from and after conception.” Writing on behalf of the majority, Blackmun simply responded, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” This, in my view, is stunning. Allow me to explain why.

Some time ago, I heard John Piper draw an analogy between abortion and hunting. If you go into the woods, he said, and you see something moving but can’t quite tell what it is, you don’t shoot. It could be the animal you are after, but it could be a person. It could even be your hunting buddy. The potential exists that this movement could be a human being. And if that potential exists, then you don’t shoot your weapon at the movement. If you did, and it turned out to be a person, then you would face the criminal charges of manslaughter or perhaps even murder. The point, Piper said, is that if the potential exists that you are destroying a human life, then you do not shoot your weapon. Likewise, when it comes to abortion, if we don’t know whether the preborn should be considered human beings, even if we conclude they are potential persons, then we should not abort them. If the potential is there that this is a person, you don’t fire your weapon. 

Two problems with the Court’s reasoning should be clear. First, by finding in favor of Roe and overturning every state statute outlawing abortion, the Supreme Court effectively did precisely what it said it need not do. The written decision may have remained explicitly agnostic with regard to the beginning of life, but by legalizing abortion and denying legal protection to the preborn the Court implied that they are not alive. They are not persons. Second, the Court did not give due weight to the possibility that there may be life there, at least in potential. The Court simply said that it did not know and did not care. If the Court were to walk into the woods and see movement behind a tree, expect a barrage of more than fifty million shells to be unleashed. “Wait,” you urge, “might that movement be caused by a human being?” The Court simply responds, “Maybe, but maybe not. No one really knows, after all. So, fire away.” _____ Image courtesy of Salvatore Vuono / FreeDigitalPhotos.net

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