Why is Abortion Legal?
By James Freeman
Pop quiz: Do you know why Americans have the "right" to an abortion? Yes, the Supreme Court's Roe v. Wade decision prevents states from outlawing abortion. But do you know why the Court decided in 1973 that states can't ban abortion?
George W. Bush said recently that Roe v. Wade was "a reach." That sparked my curiosity, so last weekend I read this most controversial of Supreme Court decisions. I don't mean to suggest that I came to it with a completely open mind. I believe abortion is wrong, and the legal arguments I had seen attributed to the Roe v. Wade decision didn't make a lot of sense to me. But I learned a great deal from reading the full text and I urge you to check it out. It's not very long and it's available at many web sites, including http://hometown.aol.com/abtrbng/410us113.htm.
I think two things will strike you immediately - - 1) Bush has a point and 2) the justices have an interesting view of history.
As for Bush's point, and to answer the question I posed earlier, here's why the Supreme Court decided that states can't outlaw abortion: Prohibiting abortion is a violation of the 14th Amendment, according to the Court.
The 14th Amendment, passed in 1868, was meant to protect freed slaves from persecution and unlawful imprisonment, and to make sure they enjoyed equality under the law. When you read the 14th Amendment, you won't find any reference to abortion. What you will find is that people can't be denied liberty without due process of law. And that's why the Court decided that there's a right to abortion. Liberty equals abortion? Well, the Court couldn't get there in a single step.
They interpreted liberty to include a "right to privacy" (also not mentioned in the 14th Amendment) and then they figured that if you do in fact have a right to privacy, then that must include the right to have an abortion, since it's your body and bearing or not bearing a child is a very private matter.
So liberty means privacy means abortion. To call this "a reach" is being kind. Very early in grade school we learn what liberty means and what privacy means and they are not the same. We also know that privacy is not a synonym for abortion. If you think I'm spinning this or if you think I'm misrepresenting what led the justices to their decision, I urge you to read the document.
When you do, you'll find another interesting detail. You may know the Hippocratic Oath, which all doctors take, as "Do no harm." Well, apparently that's the short version. According to the majority opinion in Roe v. Wade, the ancient Greek physician Hippocrates, "the Father of Medicine," actually said something more specific: "The Oath varies somewhat according to the particular translation, but in any translation the content is clear: 'I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,' or 'I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.'"
Now, as you know, judges love law and precedent. As for law, the Constitution doesn't mention abortion, and as for precedent, Hippocrates himself said "no way" to abortion and assisted suicide. This obviously presented quite a challenge to justices looking to somehow find a legal tradition that would support abortion. So the justices wrote that Hippocrates was never really very influential in the medical community and that it was only much later, when some Christians exploited his work, that he became famous. Nice try. And Al Pacino had a bit part in The Godfather.
After reading Roe v. Wade, I'm inclined to believe it could not withstand a serious intellectual challenge.
James Freeman writes the weekly TechnoPolitics column for Forbes.com. His column appears each Wednesday on USATODAY.com.
Editor's note: Also go to "Today's News &Views" found at www.nrlc.org. Freeman's essay is analyzed in depth on Feb. 15, 16, and 17.