Roe v Wade, why the controversy?
After Justice Kennedy retired, POTUS45, by virtue of the US Constitution, has to nominate his successor. He then delivered on his promise during the campaign to nominate a “conservative judge”, Brett Kavanaugh. According to the “liberals”, this will likely tilt the direction of the Court towards “originalist or textualist” philosophy in interpretation of the US Constitution based on original writings of the “founding fathers”. Hence, the composition of SCOTUS is again a “flashpoint” in politics. The “progressives” are justifiably energized as they believe that the US Constitution is a “living and vibrant” document that has to be interpreted based on current situation. According to Podesta & Halpin, “Since the late 19th century (progressives) rejected the conservative interpretation of the Constitution as an unchangeable document…” (1). This renewed activism was self-imposed by the “left” and kindled by a call from conservatives to revisit Roe v Wade(2).
It is unlikely that Roe v Wade decision by SCOTUS will be overturned because of the principle of “stare decisis”, i.e., “to stand by things decided”. (3). It expresses the common law doctrine that court decisions should be guided by precedent. But this has been cautioned: “Although courts seldom overrule precedent, Justice Rehnquist explained that stare decisis is not an inexorable command”. (4)
Aside from discord in the principle that guides interpretation of the US Constitution, the bone of contention in Roe v Wade is rooted in what is in the US Constitution as regards to:
1. right to life and
2. right to privacy.
Justification for abortion is founded on the “right to privacy”. Countered to that is the so-called Creator-given unalienable “right to life”. Let us then examine the arguments from which “pro-choice” and “pro-life” are based
Right to life
This is a commonly used argument. But, does the US Constitution really provide basis for “pro-lifers” to bank on this “right”? The preamble to the Declaration of Independence states:
“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are Life, Liberty, and the pursuit of Happiness”
So the argument was based in the Declaration of Independence, not in the US Constitution. But, is the Declaration of Independence a legally binding document in USA?(5). This question has been answered by a pro-life conservative group, the Heritage Foundation:
“The first of the four organic laws of the United States, the Declaration may lack legal force but remains nonetheless the source of all legitimate political authority.
If this document was legally enforceable, then why were some men (Blacks, Asians, Irish) not treated equally for another hundred years? Simple, because the Declaration of Independence cannot be used for legal precedent. It is a position paper, written by a collection of men stating their intent to form a new government.”
The preceding appears to be the “last nail hammered into the coffin” of this assumed “right to life”. Nevertheless, conservatives stay adamant on this principle based on the Declaration of Independence.
Right to Privacy (4th Amendment)
While the right to privacy refers to the concept that one’s personal information is protected from public scrutiny, this has been extended to justify abortion with certain limits. U.S. Justice Louis Brandeis called it “the right to be left alone.” (6). While not explicitly stated in the U.S. Constitution, some amendments provide some protections.
In Griswold v. Connecticut (1965),
the Supreme Court ruled that a state’s ban on the use of contraceptives violated the right to marital privacy (7). The case concerned a Connecticut law that criminalized the encouragement or use of birth control(8).
Clearly, there is no explicit “right to abortion” in the US Constitution and this right emanated from assumed penumbra of the “4th amendment right to privacy”. Then, Heninger, wrote in WSJ that “ Trump Blows away a Penumbra” (9).
According to him, “Griswold is worth recalling because it established a right to privacy, though the Constitution says nothing about any such right. Justice William O. Douglas famously explained how this could be, arguing that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Douglas’ “penumbras” decision, though ridiculed, defined the post-’60s era of “judge-made law,” in which achieving a result that reflected liberal values or policy goals mattered more than the legal reasoning to justify it. This results-driven view is what routinely sent Justice Antonin Scalia into eloquent and volcanic dissents.
Though capable of rigor in his reasoning, Anthony Kennedy was willing to swing toward decisions that simply affirmed what he thought were ascendant cultural mores. With the Trump Supreme Court nominations, this long era of judge-made law is at risk, if not over.”
These facts of the argument notwithstanding, passion on both sides continue to “stoke the fire” regarding principle of originalism(10) and judicial activism (11). Change has occurred in the last three generations through judicial interpretation rather than the amendment process that is embodied in the Constitution.
Because of the preceding, the course of direction as to how SCOTUS will decide on a particular issue, depends on what is the “composite intellectual and emotional bias” of the nominee and eventual composition of the SCOTUS. Hence, POTUS holds the cards as to who that person is and Congress will “advise and consent”. Nevertheless, any justice of SCOTUS can swing decision either way. There are no guarantees.
The religious viewpoint centers on 2 positions of discord, viz.,
1. Does the unborn have legal status as citizen of the state?
2. When does life begin?
On the issue of legal status for the unborn, one can look back as to how traditional Judaism understood this subject. Traditional and Reformed Judaism differ on this matter. According to Fred Rosner, Professor of Medicine at New York’s Mount Sinai School of Medicine (12) “An unborn fetus in Jewish law is not considered a person (Heb. nefesh, lit. “soul”) until it has been born.” A case of accidental abortion is discussed in Exodus 21:22‑23, where Scripture states:
“When men fight and one of them pushes a pregnant woman and a miscarriage results, but no other misfortune ensues, the one responsible shall be fined as the woman’s husband may exact from him, the payment to be based on judges’ reckoning; case of property damage — not murder. But if other misfortune ensues, ( the mother dies) the penalty shall be life for life.”
“None of the rabbis raise the possibility of involuntary manslaughter being involved because the unborn fetus is not legally a person and, therefore, there is no question of murder involved when a fetus is aborted.”
The Mishnah elsewhere states: “If a pregnant woman is taken out to be executed, one does not wait for her to give birth; but if her pains of parturition have already begun [lit. she has already sat on the birth stool], one waits for her until she gives birth.” One does not delay the execution of the mother in order to save the life of the fetus because the fetus is not yet a person (Heb. nefesh), and judgments in Judaism must be promptly implemented. The Talmud also explains that the embryo is part of the mother’s body and has no identity of its own, since it is dependent for its life upon the body of the woman. However, as soon as it starts to move from the womb, it is considered an autonomous being (nefesh) and thus unaffected by the mother’s state. This concept of the embryo being considered part of the mother and not a separate being recurs throughout the Talmud and rabbinic writings.”
In Jewish law (13), “it does not share the belief common among abortion opponents that life begins at conception, nor does it legally consider the fetus to be a full person deserving of protections equal those accorded to human beings. A fetus attains the status of a full person only at birth. Sources in the Talmud indicate that prior to 40 days of gestation, the fetus has an even more limited legal status, with one Talmudic authority (Yevamot 69b) asserting that prior to 40 days the fetus is “mere water.” Elsewhere, the Talmud indicates that the ancient rabbis regarded a fetus as part of its mother throughout the pregnancy, dependent fully on her for its life — a view that echoes the position that women should be free to make decisions concerning their own bodies.
“The Jewish position on abortion is nuanced, neither condoning it nor categorically prohibiting it. Judaism teaches that the body is ultimately the property of God and is merely on loan to human beings. Multiple prohibitions in Jewish law— including prohibitions on suicide, getting tattoos and wounding oneself— collectively serve to reject the idea that individuals enjoy an unfettered right to make choices regarding their own bodies.
In the Commentary of Ernest Martin & David Sielaff(14):
“In the Didache (a late 1st or early 2nd century C.E. church document otherwise known as the “Doctrine of the Twelve Apostles”) there is a discussion about the commandments
“…thou shalt not murder a child by abortion nor kill them when born.”
• Didache 2.2,
Note that both abortion and infanticide were termed “murder.” The historical ekklesia has been consistent that in its expression that both abortion as well as infanticide were murder.“
Beyond legal status, the question as to when life begins is another issue. Everyone can see that a sperm and ovum have to be “alive” for fertilization to occur. It suspends credulity to think otherwise. A zygote (fertilized egg) is a “new creation” and is alive. An abundance of proof traces a “new life beginning at conception”(15). Concurrence also came from the American College of Pediatricians(16), US Health and Human Services(17) and Medical textbooks(18).
Even with the preceding facts, opponents on both sides of the issue will continue this political skirmish. This is just the nature of current atmosphere among protagonists in this issue. People will remain conflicted and conflated by this dilemma.
There is “new creation“ ongoing (19) and in the process of full development and subsequent birth. Metaphorically, the “sperm”(Holy Spirit of power is being given to those who are called for their “ovum” (spirit-of-man) to be “fertilized”(nourished and nurtured). The Holy Spirit is writing in the “fleshly tables” (2 Cor. 3:3) of our temple, it’s laws and opening our “deaf ears and blind eyes” (Isaiah 35:5; 43:8; Luke 8;8; Mark 8:18; Matthew 13:16) to the truth and will empower us to bring “fruits of the Holy Spirit”(Galatians 5:22-23). Through following the guidance, direction, and wisdom of the HS, this “spiritual zygote”, will eventually reach full development, maturity and manifest or declared itself “by resurrection from the dead” (Rom. 1:4) worthy of the category to be named “son of God” (20) with Jesus as “elder brother”(Heb. 2:11).
But, a heightened awareness now gives a recurring warning from God to those called and received the Holy Spirit of power to reach full development and not to “abort themselves in the womb of the church” as in 2 Peter 2:22
“They prove the truth of this proverb: “A dog returns to its vomit.” And another says, “A washed pig returns to the mud”(NLT).
Let us not go back to our sinful past. Instead, let us be firm, passionate and determined to follow the Holy Spirit and bring forth “fruits of the Holy Spirit”.
Remember the admonition in:
Matthew 24:13 Jesus says “He that shall endure unto the end, the same shall be saved” (KJV), or, as the NIV has it, “The one who stands firm to the end will be saved.”
Rev. 3:21 “ To him who overcomes I will grant to sit with Me on My throne, as I also overcame and sat down with My Father on His throne”
Only those called in this dispensation, received the Holy Spirit of empowerment, developed into full-term maturity, endured-overcame through the end, will have “immortal-Spirit-composed bodies, eternal life.”
So, let us follow the guidance and direction of the Holy Spirit, even in “sweating of blood” scenario that Jesus went through in the garden of Gethsemane(21).
Moreover, with advances in “imaging studies”, viz.ultrasound and CT as well as the original “Roe” never had an abortion and now pro-life, this issue needs re-evaluation.
1. Podesta and Halpin, The Constitution is Inherently Progressive. Retrieved 7/12/18 from https://www.americanprogress.org/issues/courts/news/2011/10/11/10444/the-constitution-is-inherently-progressive/
2. Roe v Wade Retrieved 7/12/18 from
3. Stare Decisis Doctrine. Retrieved 7/12/18 from https://study.com/academy/lesson/stare-decisis-doctrine-definition-example-cases.html
4. Stare Decisis. Retrieved 7/12/18 from https://www.law.cornell.edu/wex/stare_decisis
5. Eric Beasley, Fact Check: Does the US Constitution guarantee a right to life? February 29, 2016 Retrieved 7/12/18 from https://aminerdetail.com
6. Sharp, Tim. Right to Privacy: Constitutional Rights & Privacy Laws, Retrieved 7/12/18 from https://www.livescience.com/37398-right-to-privacy.html
7. Griswold v Connecticut. Retrieved 7/12/18 from https://en.m.wikipedia.org/wiki/Griswold_v._Connecticut
8. The Supreme Court . Expanding Civil Rights . Landmark Cases. Retrieved 7/13/18 from https://www.thirteen.org/wnet/supremecourt/rights/landmark_griswold.html
9. Trump blows away a penumbra. Retrieved 7/13/18 from https://www.google.com/amp/s/www.wsj.com/amp/articles/trump-blows-away-a-penumbra-1530722910
10. Originalism. Retrieved 7/14/18 from https://constitutioncenter.org/interactive-constitution/articles/article-v/originalism-an-essential-ingredient-of-the-constitutional-amendment-process/interp/22
11. Strauss, David. How we change the Constitution (Judicial activism) Retrieved 7/14/18 from https://constitutioncenter.org/interactive-constitution/articles/article-v/how-we-change-the-constitution-hint-its-not-by-amending-it-by-david-a-stra/interp/22
12. Rosner, Fred. The Fetus in Jewish Law. Retrieved 7/18/18 https://www.google.com/amp/s/www.myjewishlearning.com/article/the-fetus-in-jewish-law/amp/
13. Abortion and Judaism. Retrieved 7/18/18 https://www.google.com/amp/s/www.myjewishlearning.com/article/abortion-in-jewish-thought/amp/
14. Abortion and the Bible. Retrieved 7/28/18 from
15. Life begins at fertilization. Retrieved 7/19/18 from https://www.princeton.edu/~prolife/articles/embryoquotes2.html
16. When human life begins. Retrieved 7/19/18 from https://www.acpeds.org/the-college-speaks/position-statements/life-issues/when-human-life-begins
17. Life begins at conception. Retrieved 7/19/28 from http://thefederalist.com/2017/10/13/life-begins-at-conception-says-department-hhs/
18. Quotes: Human life begins at conception Retrieved 7/19/18 from http://www.lifenews.com/2015/01/08/41-quotes-from-medical-textbooks-prove-human-life-begins-at-conception/
19. Ongoing Creation. Retrieved 7/19/18 from https://fact-s.net/2018/06/30/ongoing-creation/
20. Son of God, Whar does it mean? Retrieved 7/19/18 from https://fact-s.net/2016/12/23/son-of-god-what-does-it-mean/
21. Garden of Gethsemane, a Teaching Tool for all? Retrieved 8/11/18? from
Original post: July 19, 2018
Revised and reposted 8/11/18
[…] 9. Roe vs Wade. Retrieved 9/13/18 from http://fact-s.net/2018/07/19/roe-v-wade-why-the-controversy/ […]