In nature numerous things may be observed over time to take form. Crystals form, clouds form, canyons form and so on. Each of these formations is a consequence of the process that formed them, such as crystallization, condensation, erosion etc. Life also is a function of process. Whatever form it takes is incidental to, and a consequence of, that process. Do not the dead, prior to decay, have just as much form as the living? It is the process that is of the essence, not the formation. Nothing happens in the absence of process. The process is life. Fourth: Blackmun looks to the law and the Constitution for a definition of personage and finding none declares that the unborn have never been recognized in the law as persons in the whole sense. His statements beg the question: Does the law define language or does language give meaning to the law? The purpose of the Constitution is not to define personage but to contain tyranny.
It should be noted that the Constitution requires prior personage as a condition of bestowing citizenship. Citizenship is bestowed on persons born and persons naturalized. Personage is the prerequisite, not the achievement, and is therefore assumed. Where in law is it established that birth bestows personage or membership in the human race? Fifth: Blackmun, on the basis of meager precedent and an inconclusive examination of the thinking of the Stoics, ancient healers and philosophers, English common law, the American Medical Association, and so forth decided that life must not be present in the unborn. When life is present is a question we do not try to resolve.
To assume otherwise would have required a determination of its species. This he carefully avoided as well. His position also required that viability and the acquisition of life be achieved in the absence of the life process. In other words, conception and the process of gestation plays no significant or compelling roll in the reproductive process and is accomplished in the absence of life. When sperm meets egg life may eventually form, but quite often it does not.
This assumes that the onset of life is a coincidental and spontaneous occurrence only casually associated with the reproductive process. Ignored is the fact that viability is a function of vitality, not visa versa, and is meaningless in the absence of life. In other words, the requirement of vitality precedes the onset of viability. Life must first be present before the possibility of potential can emerge. The notion that life is somehow ‘acquired’ at about the 24th or 28th week of gestation and its presence determined by the onset of viability is, to put it generously, unique. Stated another way, one cannot ‘become viable’ and then become vital or alive. Viability is a condition of vitality or life. Not its determinate. Sixth: In addition, Blackmun’s assumption that life was not present in the unborn is not supported by any credible body of fact or evidence.
(Blackmun, his disclaimer not withstanding, had to make this assumption in order to reach his conclusion. The presence of life requires determination of species. Determination of species would have required the protection of the law.) Such meager evidence as presents itself rests upon the ignorant assumptions of ancient traditions. It was on these that he built is argument on ‘the compelling point’ of ‘viability’. Conversely, the probability that life is present is supported by virtually every credible source within reach of the Court. He had only to ask himself, can the process responsible for propagating life do so in the absence of life? and would it be reasonable to assume that it could? From here he would have been required to investigate and deduce a conclusion other than the one he reached.
Seventh: Blackmun assumes that the individual has the right to privacy, which is correct. He also assumes that the individual has the right to do just about anything they want with their body, including having an abortion. This is only partly correct. In a free society the individual only has unfettered authority, and therefore the right, to do those things he can do for himself and to himself and then only within reasonable limits that may be imposed by law regarding the legitimate interests of the State. For example, the individual has the right to buy or build or otherwise acquire a house for himself. But he does not inherently have the right to a house.
He has the right to acquire and be secure in what he has acquired but not the right to have in the absence of acquisition, i.e. his ability to acquire. In the matter of abortion, the female does not automatically have the right to an abortion. She may, however, have the right to petition the court or an appropriate governing body to acquire an abortion, or even to attempt to perform one on herself, but she does not automatically have the right to a service that must be provided by another.
Such a ‘right’ would require the forfeiture of authority by another party. The State has the power to deny such services if the State reasonably believes it is in its best interest and its legislative bodies so decide. The individual does not have the inherent ‘right’ to acquire a service from someone who would be in violation of State law by rendering that service. Until the question of the presence of life and condition of personage are properly resolved and any reasonable doubt removed a legislative body might very reasonably decide, in order to forestall the possibility of injustice, that a moratorium should be placed on abortion providers. Reasonable doubt is a well established principle of law, the very purpose of which is to forestall injustice. Blackmun, rather than resolve these doubts, acted presumptively and precipitously to preclude them. These are a few of the more obvious errors to be found in the text of Roe. For a more complete examination please refer to the article The Servant of Expediency.
