Roe vs Wade: How It Came To Be

Adapted from “A Choice for Life” by Keith Beutler

It is impossible to understand the infamous Roe vs Wade decision without a careful evaluation of the US Supreme Court’s decision in the case of Griswold vs Connecticut. In this case, the Court ruled that a Connecticut law banning the sale of contraceptives was unconstitutional. The Court insisted that Connecticut’s law violated Constitutional guarantees of a general “right to privacy” for Americans. It was this supposed general right to privacy that the Court would later claim in Roe vs Wade as the basis for its pro-abortion decision.

The Constitution never mentions a “right to privacy.” In Griswold, however, the Court ruled that such a right is implied by provisions in the Bill of Rights, such as Amendments III and IV. Writing for a majority on the Court, Justice William O. Douglas insisted that “Specific guarantees in the Bill of Rights have penumbras [meaning shadows], formed by emanations from those guarantees that help give them life and substance.”

Follow the trail of illogical reasoning—the bouncing ball, if you will. The Court ruled that the Constitutional right to privacy (bounce) is implied in the Bill of Rights (bounce, bounce). This right to privacy prevents the legislature of Connecticut from banning contraceptives (bounce, bounce, bounce). Later, the bouncing ball would land on the Roe vs Wade decision (and its companion, Doe vs Bolton) that the states may not prohibit any abortion.

As you can see, the Griswold ruling is “way out there” logically. The Court’s unusual reasoning, which formed the basis for the Roe vs Wade decision a short seven years later, may be illustrated as follows:

  1. Amendment III says that “No soldier shall, in time of peace, be quartered in any house without consent of the owner, nor in time of war, but in a manner prescribed by law.” Amendment IV says that “The rights of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but on probable cause . . . ”
  2. Amendments III and IV imply a general right to privacy.
  3. A general right to privacy means that Connecticut cannot ban contraceptives.

Perhaps remembering a principle form, high-school geometry will help us to see clearly that the Court’s argument is illogical. The principle is the “transitive axiom.” It goes like this: if A=B and B=C, then we can drop the middle term and simply say that A=C. Now, if the Court’s logic in Griswold is airtight, if there is no room for slippage, we should be able to remove the middle term without damaging the integrity of their arguments:

Unconstitutionality of quartering troops in private homes and of searches without a warrant = Connecticut cannot ban contraceptives.

Do you see the enormous slippage? Neither Amendment III nor Amendment IV grants a general right to privacy, as the Court assumed in Griswold and subsequent related decisions, including Roe vs Wade.

The Constitution neither gives legal authority over contraception to the federal Government, nor prohibits it to the states or to the people. So, in light of Amendment X, it seems that the issue should be left to the discretion of state legislatures, which are elected by the people. Instead, the Court contrived national policy in Griswold based on supposed “penumbras” (shadows) of the Bill of Rights. Thus the Court violated the Tenth Amendment to the Constitution.

Parenthetically, it should be noted that the question here is not whether Connecticut should ban contraceptives. Most people agree they should not. The question is whether the Court based its decision on sound legal reasoning or on the kind of slippery logic that can make our Constitution say just about anything those in power want it to say. Further, it should be noted that if people do not agree that contraceptives should be banned in Connecticut, regular elections give them the opportunity to correct this law. But when the Supreme Court appropriates for itself the power to contrive national policy based on “penumbras,” as it would do in Roe vs Wade, it is much, much more difficult to correct.

Seven years later, in Roe vs Wade, the Court based its decision, in part, on the faulty logic of Griswold, that there is a general “right to privacy” found in the Constitution. In Roe vs Wade, the court maintained that the right to abort a preborn child is a logical extension of the “right to privacy.”

In Roe vs Wade, the Court also addressed the issue of whether the preborn child could escape death by claiming his rights of personhood under the Constitution. Amendment XIV says, in part, “Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” But in Roe vs Wade, the Court ruled that a human fetus is not a person, and so lacks Fourteenth Amendment protection.

Of course, Roe vs Wade relied upon accidental characteristics to argue against the fetus’ essential personhood. The Court’s ruling is indefensible in light of moral and medical arguments that prove the humanity of the unborn. In ruling against protection of the unborn, the Court ignored the intention of John A. Bingham, an author of the Fourteenth Amendment. Bingham called the Constitution a bulwark designed to protect the “sacred rights to life, liberty and property” which belong to “any and every human being.”

In simple terms, Roe vs Wade stated that we have a Constitutional right to exterminate our posterity. However, this claim contradicts the assertion of the Preamble of the Constitution that America exists to “secure” the “blessings of liberty” to “our posterity.”

Roe vs Wade is based on a fraudulent “interpretation” of the Constitution, and we must work to overturn it.