The Supreme Court should uphold Roe v Wade

I regret David’s forfeit if R1. 

 

 

I.a The 4thand 14thAmendments do not have the bliss of ignorance of the Supreme Court. There are few landmark decisions, even as far as a declared privacy of persons in their various conditions of “persons, houses, papers, and effects, …” There is one that makes use of a cafeteria-style approach to the Constitution. By “cafeteria-style,” I refer to the occasional proclivity of the Court to pick-and-choose verbiage of the Constitution, as if it were mere suggestion subject to whimsical interpretation. The “right to privacy,” as suggested by the Court in Roe v. Wade [1973] is such a case.

 

I.b The words “right to privacy” exist nowhere within the body of text of the Constitution and Amendments.[1]  I’ve cited the document to allow such a search. The right is merely implied. Just to demonstrate the Court’s own irritation on the matter, their summary conclusion included, “However, this right is balanced against the government’s interests in protecting women’s health and protecting ‘the potentiality of human life.’”[2]   

 

I.c It is interesting to note the subsequent comments by two of the seven Justices, whose decisions [7-2] carried the assenting opinion of the Court:[3]

 

1.     Chief Justice Burger: "The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today's holding really mean what they seem to say, I agree we should reexamine Roe… state action encouraging childbirth except in the most urgent circumstances is rationally related to legitimate governmental objective of protecting potential life.”

2.     Justice Ruth Bader Ginsburg: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.”

 

I.d The “right to privacy” must be weighed against “the potentiality of human life,” i.e., the potential of the fetus. That the fetus is living, and human is without question. Its DNA confirms humanity; it cannot be any other genus and species but Homo sapiens. During gestation, in fact, at conception via the male and female gametes, through birth, it is entirely and uniquely human. I expect this is common knowledge.

 

I.d.1 It must follow that the designation of personhood be determined. On this matter, the law is currently conflicted:

 

I.d.1.A 1 USC §8 stipulates:  “(a)  In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.”[4]

 

This law discounts the fetus. The following is in conflict with it:

 

I.d.1.B  Unborn Victims of Violence Act [2004] “[2][C] If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of  being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or  attempting to kill a human being.”  

 

I.e These charges are various levels of manslaughter or murder, which charges can only be levied with human victims.

 

I.f This does not justify the Court’s reach to create a term not found in the Constitution, at least in the realm of the complicated matter of pregnancy since there is, clearly, another human life at issue.

 

I.f.1 Let’s examine, biogenetically, what is going on. The zygote, extant by virtue of coitus, or  in vitro fertilization, is a separate entity by virtue distinct DNA, compared with that of the mother. The zygote/embryo/fetus, plus the amniotic sac and its fluid, the umbilical, and the placenta, are all unique tissues containing the unique DNA of the fetus.[5]

 

I.f.2 It was once thought that the placenta presented a complete barrier between mother and fetus, other than the passage of nutrients, but discovery of fetal cells in the mother’s blood and other tissue some 40 years ago discounts this assumption.[6]. Called microchimerisms, to date, there has been no evidence of harm caused to the mother by the presence of these cells.[7]

 

I.g Do these facts interrupt the knowledge had in 1973 regarding the right to privacy, since the distinction between mother and fetus is so clearly drawn? It may be crude, but I liken both the intent of pregnancy, and its biological process, to a person holding a ping pong ball in one hand. It is not part of the hand, nor of the rest of the person, yet the hand entirely contains it. In the closed fist, the ball is not part of the hand. Opened, the ball falls out, again, because it is not part of the hand. Where that ball is actually a human fetus, and with mother and fetus being biogenetically distinct, as with other rights, such as the right to free movement of my body, that freedom ends at the full extension of my limbs if such extension infringes on the extended limbs of another person. So do the mother’s rights end with the separate person within her? I argue, “yes,” because any other “right” of human ownership is otherwise called slavery.

 

I.h The understanding, by law, is that “human being” equates to “person.” The Supreme Court, in a relevant case before it regarding abortion, and the potential to overturn Roe v. Wade, ought to be, in Justice Burger’s words, “reexamined.” Therefore, the Resolution, being couched in a subjective case, and given the arguments above of separate personhood of the fetus, should fail.

 

 

II.a When Roe v. Wade was decided five decades ago, full term of a pregnancy was 37 weeks, and still is. However, in five decades, as warned by Justices of the Supreme Court who decided Roe, it needs to be re-visited. One big reason, beyond the discussion of personhood of the fetus, is the reducing term of premature births able to sustain viability. Quite simply, the distinction of live birth, as stipulated by statute 1 USC §8, is occurring in earlier and earlier weeks of gestation, purely because of advances in medical science. What does that say to those who demand that personhood be limited to the condition of live birth, relative to the original demands of Roe v. Wade and first, second, and third trimester distinctions? Simply put, nature, not law, and not necessarily even science, determines when birth occurs. Therefore, who are we to make the arbitrary, and obviously potential reducing timing of personhood, simply by designation of time? It’s becoming a slipping-slide banister that law seems ill equipped to legislate. Therefore, Roe v. Wade needs revisiting, and repeal of its current ruling.

 

II.b Are there alternatives to pregnancy? There are a few:

 

1.    By nature, sexual activity is the natural vehicle of procreation. Therefore, understanding that people also use it as a pleasurable activity, those so engaged should do so with due caution. Can pregnancy be avoided? There is currently one, true measure that is 100% effective when applied: abstinence. Obviously effective, but not popular to pleasure-seekers.

2.    Failing that option, artificial contraceptives exist, but none are 100% effective. Of them, sterilization probably has the next best effectiveness compared to abstinence, but is demonstrated as having failures.

3.    Failing that, other current artificial contraceptives are of lessening effectiveness, but people count on them, including #2, above, knowing abortion can back them up should failure occur. The ethics of that, given the discussion above of lessening the calendar of viability, are becoming less and less certain.

 

II.b.1 All the above require personal responsibility, and even that is being abdicated as more and more people become dependent on government to solve their personal issues. A potential repeal of Roe v. Wade will have the consequence of re-addressing personal responsibility, but does anyone really want to suggest that would not be a good result for society considering that of the current fetal population of the aborted, at least 1/3 of them would be proponents and constituents of the pro-choice population? Is any segment of the population really that dedicated to self-limitation? Do proponents of abortion really believe they were not the result of live birth, regardless of stage of development?

 

II.c These are questions requiring sober answers by the proponents of Roe v. Wade.

 

 

 

 

 

I regret that Pro has forfeited the first 2 rounds. Therefore, still lacking argument to rebut, I will proceed.

 

III.a It may be news to some that the Court makes law by its decisions. It makes precedent law, i.e., where there is no statutory law that fits the circumstances of a case before it, the Court will establish precedent, meaning that all other courts, including itself, must follow the precedent in similar, subsequent cases. The Court also upholds extant statutory law.

 

III.b There are two caveats to precedent: 

 

1.    A subsequent case may come along which circumstances are somewhat comparable to, but do not match the precedent-setting decision. In that instance, the precedent may change by virtue of the new case. In all other regards, precedent law is as binding as statutory [legislated] law.[1]

 

2.    Congress may legislate a statute that either supplants the precedent of the Court, or it may legislate a law that voids the precedent. All statutory law is binding.

 

III.c Considering just the Supreme Court, there have been roughly 1,900 cases heard since the Court’s establishment in1791. In that time, about 230 years, the Court has reversed previous decisions, some being precedent-setting, at least 220 times;[2]   roughly 12% of its decisions.

 

IV.a This may look like an argument for Pro’s side of this debate. I acknowledge that Roe v. Wade [1973] established precedent; the precedent being, much as I personally oppose it, that a right to privacy is constitutional, regardless of its mention lacking in constitutional language. The reason is because the Court’s real sole purpose is interpretation of the Constitution. Quite simply, in spite of my opposing view, We the people have granted the Court’s power to enact precedent law by interpretation of what may not be precise language constitutionally expressed, thus drawing the distinction between precedent, and statutory law.

 

IV.b As a consequence, I may ask, “Abortion is a medically invasive procedure, therefore, what privacy?” The answer is simple: it is a procedure to which the patient, the pregnant mother, has allowed to be done on her person. It is, also quite simply, the reason why a woman of majority age – established by State law – cannot, having first consented to having sexual relations with a partner, then claim she was raped. Consent is, obviously, an argued point, particularly in the event of pregnancy.

 

 

V.a There is one statutory law, one we visited in my R1, I.d.1.A: 1 U.S.C §8, against which Roe breaks upon. That break occurs by the contained definition of “person:” a fetus, “born alive, regardless of stage of development.”  As written by the assenting Justices of the Supreme Court, they established declining conditions by which abortion can be performed, based on increasing fetal development through equal phases of periods: first, second, and third trimesters. The one caveat to all is an observed potential risk to the mother’s health, but Roe may not survive if advocacy of abortion survives on that factor, alone.

 

V.b Aside from that, the push by abortion advocates who favor late-term abortion, or even mid-term abortion, aware that 1 U.S.C §8 limits free access to aborting a mid-to-late term fetus who, allowing nature to take its course, would be a live birth, argue that if they can avoid the live birth, thus preventing personhood, current Roe v. Wade precedent does not allow their term abortion advocacy. These advocates must appeal for a precedent change; effectively reversing/changing even a portion of the current precedent. It is their only legal course. Thus, the Resolution fails, even for abortion advocates.

 

I close my arguments for R2, hoping for a pro argument in R3.