Judge Andrew Napolitano: The Supreme Court's most controversial decision since World War II

During one week in January 1973, President Richard M. Nixon was inaugurated to his second term, former President Lyndon Baines Johnson died, the United States and North Vietnam entered into the Paris peace accords, and the Supreme Court legalized abortion. Only the last of these events continues to affect and haunt the moral and constitutional order every minute of every day.

The court’s decision in Roe v. Wade is arguably its most controversial in the post-World War II era. Its effect has been as pernicious to human life as was its 19th-century intellectual progenitor, Dred Scott v. Sanford, in which the Supreme Court ruled that African-Americans are not persons.

Roe declares that the states may not ban abortions during the first trimester of a woman’s pregnancy because the states have no interest in or right to protect the baby during that time period. This made-up rule was a radical and unconstitutional departure from nearly 200 years of jurisprudence, during which the states themselves decided what interests to protect, guided since the end of the Civil War by the prohibition on slavery, and the requirements of due process and equal protection.

During the second trimester of pregnancy, the court declared in the Roe case, states may regulate abortions but only to protect the health of the mother, not the life of the baby, in which, the court found inexplicably, the states have no interest. This, too, was a radical departure from well-settled law.

Under Roe, during the third trimester of pregnancy, the states may ban abortions or they may permit them; they may protect the life of the baby or they may not protect it. This diabolic rule, the product of judicial compromise and an embarrassing and destructive rejection of the Civil War era constitutional amendments, permits the states to allow abortions up to the moment before birth, as is the law in New Jersey, where the state even pays for abortions for those who cannot afford them.

The linchpin of Roe v. Wade is the judicial determination that the baby in the womb is not a person. The court felt it was legally necessary to make this dreadful declaration because the Constitution guarantees due process (a fair jury trial, and its attendant constitutional protections) whenever the government wants to interfere with the life, liberty or property of any person; and it prohibits the states from permitting some persons to violate the basic human rights of others, as was the case under slavery. As the Supreme Court sometimes does, it ruled on an issue and came to a conclusion that none of the litigants before it had sought.

Roe candidly recognizes that if the fetus in the womb is a person, then all laws permitting abortion are unconstitutional. The court understood that abortion and fetal personhood would constitute the states permitting private persons – doctors – to murder other persons – babies in the womb. So, in order to accommodate the killing, it simply redefined the meaning of “person,” lest it permit a state of affairs that due process and the prohibition of slavery could never tolerate. The British writer George Orwell predicted this horrific and totalitarian use of words in his 1949 unnerving description of tyranny, entitled 1984.

Is the fetus in the womb a person? Well, no court has contradicted the Supreme Court on this, and the Roe supporters argue that non-personhood is necessary for sexual freedom. Think about that: the pro-abortion rights crowd, rejecting the natural and probable consequences of ordinary, healthy sexual intercourse, wants to be able to kill babies in the name of sexual freedom.

Now I take a back seat to no one when it comes to personal freedom, but the freedom to kill innocents violates all norms of civilized society. It violates the natural law. It wasn’t even condoned in the state of nature, before governments existed. It violates the 13th and 14th Amendments. Yet, the Supreme Court and numerous congresses have refused to interfere with it. It is a grave and profound evil. It is legalized murder.

Is the fetus in the womb a person? Since the fetus has human parents and all the needed human genome to develop into postnatal life, of course the fetus is a person.

I’ve argued many times that a simple one-line statute could have been enacted when Ronald Reagan or George W. Bush or George H.W. Bush were in the White House and Republicans and pro-life Democrats, the few that there are, controlled the Congress. They could have ended the slaughter by legislatively defining the fetus in the womb to be a person. They did not. Are the self-proclaimed pro-life folks in Congress sincere, or do they march under the pro-life banner just to win votes?

Their failure to attempt to define the fetus in the womb as a person seriously, and the Supreme Court’s unprecedented dance around the requirement of due process and the prohibition of slavery has resulted in 44 million abortions in 43 years. That’s an abortion a minute. Abortion is today one of the most frequent medical procedures performed in America; and the Democrats have become its champion.

They, and their few Republican allies, have become the champions of totalitarianism as well. The removal of legal personhood from human offspring in order to destroy the offspring is only the work of tyrants. How long can a society last that violates universal norms and kills the babies in the name of “sexual freedom”?

Whose personhood will the government define away next?

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