Let’s look at a couple of phrases from the Declaration and the Preamble to see if we can determine the intent of the Founders regarding this divisive issue.
From the Declaration: “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”. From the Preamble: “…secure the blessings of liberty to ourselves and our posterity…”.
Note, please, that the order of the unalienable rights endowed to mankind has a purpose. Life comes first, and it is from there that all other rights and privileges stem. Equally, “to ourselves and our posterity” indicates that the Founders believed that those rights and privileges should be secured to ALL persons of succeeding generations, not just the ones that those living find “convenient”. And so it was, until the 1973 Roe v. Wade decision, and the corollary Casey v. Planned Parenthood decision of 1992, which introduced the “undue burden” concept to the debate.
Justice Harry Blackmun, in writing for the majority in the 5-4 Roe decision, cited the "due process" clause of the Fourteenth Amendment in striking down the Texas law prohibiting abortion in all cases except those regarding the life of the mother. The applicable part of the Fourteenth Amendment reads as follows: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law...". Justice Blackmun cites ancient law and standards to support this view, continuing up to common-law practice and 19th-century strengthening of abortion laws to show that the fetus is not held to be a person in the law, and thus does not merit the protection of the law over and above the right of the pregnant woman to terminate the pregnancy at her will.
This line of reasoning, of course, is bunk. It is clearly implied in the two phrases cited above that the Founders considered life to come FIRST, and thereafter all rights and privileges of citizens come into play, including that of due process. For the Court of 1973 to invert this logic to read that liberty comes before life is truly a mis-application of the Ninth and Fourteenth Amendments, and has resulted in the non-existence of literally millions of Americans stemming from selfishness and egocentricism.
Let's look at the numbers. The Center for Disease Control has kept statistics on reported abortions since 1970, with the latest figures available at the time of this writing being for 2002. In 1970, the first year that numbers were tabulated, 193,491 abortions were performed in the United States. Certain decisions of the Supreme Court around that time had led to the weakening of abortion statutes in some states (as well as the beginning of the Roe case and continuing appeals), which explain the jump to 485,816 abortions in 1971. From that year until 1980 an increase of approximately 100,000 abortions a year can be seen, levelling out finally in the region of 1.3 million abortions a year, with the highest level per year of 1,429,247 abortions in 1990. After that year, though, a decline in the number of abortions performed can be seen, with a dramatic drop between 1997 and 1998, from 1.186 million abortions in '97 to 884, 273 in '98. Since then, the number has flattened out at about 850,000 abortions a year.
The challenge to abortion laws by Roe is the reason for the sudden rise in abortions performed, and the continuing increase after that decision up to the mark of over 1.4 million abortions in 1990 is directly attributable to the 1973 decision. We can say with some certainty that some of these abortions were performed with "life of the mother" issues at stake, and I would stipulate that the vast majority of Americans do not have a problem with the procedure in such an instance. However, all the abortions certainly are NOT due to those issues. 1970's benchmark figure of just under 200,000 abortions can be, I believe, legitimately seen as those procedures where the life of the mother was the primary reason for the abortion to take place. If we include population growth, the number of health-issue abortions would go up, but I do not believe that the number would have been over 250,000 in any given year. Therefore, from 1970 to 1977 we saw a five-fold jump in abortions, and from 1979 to 1994 we saw probably one million abortions per year performed for convenience. Sixteen million Americans were lost to the world in those years alone out of sheer selfishness.
Why have the numbers gone down since 1997? Population shrinkage in the necessary demographic group. As the Baby Boom generation aged and left the child-bearing years, Generation X became of age. However, due to the Roe decision, there were far less Gen-X females of child-bearing age, and thus less women making the decision to have an abortion. For instance, taking the numbers of the CDC and subtracting 250,000 from each year between 1974 to 1983 to allow for health-issue abortions, we come up with a total of 11,286,147 abortions. Demographics show that females are more likely to be born than males by a ratio of about 51-49, so if that percentage is used, we find that there were about 5,755,000 less young women aged 15-24 (prime years for abortions) in 1998 than there would have been had the Roe case not occurred. This, combined with the fact that Generation X members have tended to begin families later in life, and have had better education on the dangers of unprotected sex, would account for the dramatic drop in the overall number of abortions, and the levelling of those numbers since 1998.
Will we ever see the number of abortions for convenience go down to zero? In all likelihood, no. Right or wrong, we have gone over three decades now with Roe as “settled law”, and future Supreme Courts are unlikely to overturn that decision entirely. However, the Blackmun opinion did present a template for abortion law that would be acceptable to the Court, and I believe a law could be written that would withstand challenge, as follows:
(1) In the first trimester, abortion is legal IF counselling regarding alternatives has been provided, notification of parents or legal guardians has been accomplished if applicable, and a second physician’s opinion concurs that the procedure will not impair the pregnant woman’s future physical health or child-bearing abilities.
(2) In the second trimester, abortion is legal ONLY IF the above conditions have been met AND a demonstrated risk to the physical health of the pregnant woman has been diagnosed by her physician.
(3) In the third trimester, abortion is NOT legal unless inaction would result in the severe physical impairment or death of the pregnant woman, and until all reasonable means have been used to attempt to save the life of the fetus.
(4) In the first or second trimester, all abortions in cases or rape and incest are legal and no conditions are required except for notification of parents or legal guardians if applicable,
(5) The procedure commonly known as “partial-birth abortion” will not be performed under any circumstance, and will carry the penalties of murder in the second degree if performed.
I believe this will satisfy the requirements of not only the Roe opinion, but also of the “undue burden” requirement added by Casey.
Finally, medical science has progressed to the point that this entire discussion may be rendered moot in the near future. RU-486 was a start in the right direction, and the recent FDA approval of the “Plan B” drug, also known as the “morning-after pill”, for over-the-counter sales gives women the freedom to immediately decide whether to terminate a possible pregnancy without knowing if they actually are pregnant. Plan B has my complete support, because nobody can know if conception had actually occurred, and the decision (and the results of that decision) lie completely in the hands of the woman herself. Therefore, we don’t know if an abortion has taken place. We DO know that far too many have taken place since 1973, and it is my hope that the instructions for the procedure itself starts gathering dust on the shelves of doctors’ offices and medical shelves nationwide.
