Is abortion constitutional? Let’s ask the founders

Supreme_CourtIs abortion constitutional? The Supreme Court concluded in Roe v. Wade (1973) that an expectant mother has a “fundamental right to abortion.” According to Supreme Court logic,  this right to abortion is protected under the penumbral right of privacy supposedly guaranteed by the Bill of Rights.

To see whether the Roe decision is an accurate interpretation of constitutional rights, it is important to understand the intentions of the authors of the Constitution. Did they advocate legal abortion protected by the Constitution?

One of the most authoritative sources for learning law during the founding era was William Blackstone’s Commentaries on the Laws of England. Blackstone, a distinguished English jurist, was so well-liked by the founding fathers that he was the second most frequently cited thinker in the American political writings of the founding era. American law students studied his work so religiously that Thomas Jefferson wrote to a friend that “Blackstone is to us what the Koran is to the Muslims.”

Blackstone affirmed in his Commentaries that an individual’s right to life is an “immediate gift of God.” This right to life is legally binding “as soon as an infant is able to stir in the mother’s womb.” Per Blackstone,

“For if a woman is quick with child, and by a potion, or otherwise kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.”

Interestingly, Blackstone also explains that fetuses “in the mother’s womb” are legally considered “to be born.” Thus, the law considered a fetus to be his or her own person, independent of the mother.

From these commentaries, the founding fathers learned that any abortion perpetrated after the stirring of an infant in the mother’s womb was a “heinous misdemeanor.”

American courts upheld this traditional common law approach in characterizing abortion as a misdemeanor. Founding father James Wilson, a signatory of the Declaration of Independence and original U.S. Supreme Court justice, taught his law students that,

“With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”

Similarly, St. George Tucker, a Madison judicial appointee and professor of law at the College of William and Mary, explained in his celebrated legal treatise on American law that it is  “a great misprision [misdemeanor]” to “kill a child in its mother’s womb.”

Laws in American states criminalized abortion from the beginning. For example, Virginia law outlawed the practice of using “potion” to “unlawfully destroy the child within her [womb].” These laws were crafted by many of the same individuals who framed the Constitution.

It is therefore inconceivable that the framers intended constitutional protections for abortion as a “fundamental right.” Indeed, the framers believed the opposite. From their perspective, the unborn child has a fundamental right to life, a right that would be infringed by an abortion that ends his or her life.

A “fundamental right to abortion” does not exist in the Constitution or its amendments. It is the height of intellectual dishonesty to argue that the authors of the Constitution and its amendments intended to protect abortion under some vague and unwritten “right to privacy.” That so many courts and judges have for so long upheld a legal doctrine antagonistic to the Constitution reveals the rogue nature of the modern judiciary.


This article was written for the Family Policy Institute of Washington.


 

Me Before You, Disabilities, and Suicide

21deffa3036682dc425a1e7d830d7fedMe Before You, a recently released film adaptation of a book by the same name, is garnering attention for promoting the notion that disabilities so greatly encumber life that physician-assisted suicide is a brave and reasonable solution to be celebrated.

The fictional book from which the film takes its story was written by English author Jojo Moyes.  The movie, which was released to theaters on June 3, is produced and distributed by Hollywood production giants MGM and Warner Brothers.

The story centers around Will, a young man from a wealthy family who had been injured in a motorcycle accident, and his caregiver Louisa, whose lack of ambition and humble lifestyle prevented her from experiencing all that life had to offer.

Though the two eventually fell in love, Will, who had attempted suicide months before, decides that life as a quadriplegic is not worth living. He receives a lethal dose of medication from a Swedish suicide clinic and leaves Louisa an inheritance to pursue her dreams.

Disability rights advocates believe that the movie’s ending, which celebrates the death of Will so that Lou might boldly live life with the inheritance he had left for her, implies that caring for Will would have been too great a burden on Louisa to make her life worthwhile.

“We are not ‘burdens’ whose best option is to commit suicide,” said John Kelly, regional director of Not Dead Yet, a national organization that opposes assisted suicide and euthanasia. “No one’s suicide should be treated as noble and inspirational. Our suicides should be viewed as tragedies like anyone else’s.”

Responding to criticism, Thea Sharrock, the film’s director, said, “This is a brave ending. It’s too easy to do it the other way. But this way… this is the more interesting way.” The movie, according to Sharrock, is “about how important the right to choose is.”

Thankfully, under Washington law, Will would have been unable to pursue the doctor-assisted suicide that he received in the film. Though Washington voters decided in favor of the Washington Death with Dignity Act (Initiative 1000) in 2008, the law requires that those seeking to end their life must be terminally ill patients with less than six months to live.

That a major Hollywood film is celebrating the suicide of a disabled man speaks loudly about the deteriorating moral condition of American culture. Generations ago, political philosophers like John Locke and William Blackstone, both of whom greatly influenced the philosophical ideas of the American founding, argued that suicide violated natural law and should therefore be illegal.

In his Second Treatise on Government, John Locke wrote,

“We are all the property of him who made us, and he made us to last as long as he chooses, not as long as we choose.”

Regarding the unnatural and illegal nature of suicide, William Blackstone wrote in his legal Commentaries,

“[N]o man has a power to destroy life, but by commission from God, the author of it: and, as the suicide is guilty of a double offense; one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who has an interest in the preservation of all his subjects; the law has therefore ranked this among the highest, crimes, making it a peculiar species of felony, a felony committed on oneself.”

Until the last few decades, most states, influenced by the philosophy of Locke and Blackstone, classified the act of suicide as a felony.

How have things changed since then. By the end of this year, five states (Washington, Oregon, Montana, California, and Vermont) will allow some form of doctor-assisted suicide. According to Washington state records, in 2014 there were 176 “participants” who received medication from doctors to end their lives under the authority of the Washington Death with Dignity Act.

Contrary to what the Me Before You director says, suicide is anything but “brave.” Every single person, regardless of the disabilities and challenges they face, has inherent value and is created in the image of their Creator. Suicide, even when assisted by doctors, robs society of the incredible potential for good offered by each of its victims.

This post was originally written for the Family Policy Institute of Washington: http://www.fpiw.org/blog/2016/06/06/new-movie-celebrates-suicide-insults-disabled/