Last week marked the 39th anniversary of Roe vs. Wade, the U.S. Supreme Court decision that permitted abortions. Prior to that case, abortion was regulated by each state, and most of them prohibited it unless two physicians could certify that the baby growing in the mother's womb would likely result in the death of the mother. Even the states that permitted abortions when the pregnancy was caused by rape or incest, an extremely rare occurrence, did not permit it after the sixth month of pregnancy.
Roe vs. Wade changed all that. It permits abortions in all 50 states during the first three months of pregnancy for any reason or for no reason. It permits abortions during the second three months of pregnancy for the health of the mother. "Health of the mother" can mean mental health; thus, most states have taken the liberal position that if a continued pregnancy would make the mom sad or challenge her psychologically, or if she has second thoughts about the pregnancy, the baby may be aborted.
Roe vs. Wade also permits the states to prohibit or to allow abortions during the last three months of pregnancy. Most states prohibit all abortions during the final three months, as this is the period of viability; when the baby can live — assisted, of course — outside the mother's womb. New Jersey, my home state, is the exception, as it permits abortions up to the moment of birth.
In the past 39 years, American physicians have performed more than 50 million abortions. Abortion is the most frequent medical procedure performed in the U.S. The linchpin to Roe vs. Wade is the Court's rationale that because the decision to undergo an abortion ordinarily occurs between patient and physician, and because that interaction ordinarily takes place in private, the right to privacy insulates abortion from the reach of the State. Roe vs. Wade itself does not define the right to an abortion, but it does unambiguously declare that the baby in the womb is not a person, and that the right to privacy protects the mother's decision to kill the baby.
Did you catch that? The Supreme Court declared that the baby in the womb is not a person. When it made that declaration, it rejected dozens of decisions of other courts, in America and in Great Britain, holding that the baby in the womb is a person. This is reminiscent of the Supreme Court's infamous Dred Scott decision in 1857 in which it ruled that blacks were not persons. In both cases, it cited no precedent, it gave no rational basis, and in Roe vs. Wade, it merely said that because philosophers, physicians and lawyers could not agree on whether babies in wombs are persons, it would declare them not to be persons.
If the baby in the womb is a person, then all abortion is unlawful. That's because of the constitutional protection for all persons. The Constitution unambiguously prohibits the government from impairing or permitting others to impair the life, liberty and property of persons without due process. Here's my political beef with so-called pro-life politicians in both parties. In the years in which the pro-life Ronald Reagan and both Presidents Bush were in the White House, from time to time, both chambers of Congress had pro-life majorities. Did you see any legislation passed that declared a baby in the womb to be a person? No. This could have been done by a simple majority vote and presidential signature, and Roe vs. Wade, and all the killing it spawned, would have ended.
How scary is this? The Supreme Court declares a class of humanity not to be persons, and then permits people to destroy the members of the class. That's what happened to blacks during slavery; that was the philosophical argument underlying the Holocaust; that's what is happening to babies in the womb today; and that might become the basis for the government killing persons it hates or fears in the future. It will declare them to be non-persons.
Is the baby in the womb a person? Of course babies in wombs are persons. From the moment of the union of egg and sperm, there is present a fully actualizable human genome; meaning all the genetic material necessary for post-birth existence is there. And the parents of that union are human beings. With human parents and a human genome, what else could a baby in a womb be but a person? If you have any doubt, why not give the benefit of that doubt to life, rather than to death? Unless you prefer death to life and killing to nurturing and misery to joy, I expect you agree.
Since you have been reading this essay, 10 babies have lost their lives, as abortions occur in the U.S. about two and a half times a minute. How long can a society last when we cannot protect the weakest among us, and when we destroy them out of convenience, and when we make that destruction legal? Who will be destroyed next?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network. His most recent book is "It Is Dangerous To Be Right When the Government Is Wrong." To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit www.creators.com.