REPORT TO HIS HOLINESS, POPE JOHN PAUL II
On the Status of the Abortion Question in the United States of
Father Clifford Stevens, President
National Organization for Embryonic Law
THE OBJECT OF THIS REPORT is to present to His Holiness, Pope John Paul II,
reasons for appointing a special envoy to act as the legal advocate of the
unborn in the courts of the United States, and to initiate and direct litigation
to challenge the constitutionality of the
Roe v. Wade
decision of the United States Supreme Court.
Many of the constitutional rights which Americans take for granted have had
to be laboriously fought for by skilled jurists over a long period of time. The
most notable in recent years, the
Brown v. Board of Education decision of 1954, ending segregation in the
schools, was the culmination of a legal battle that took fifty-eight years,
fifty-eight years of intense action in the courts before the right of
African-Americans to equality under the law was assured.
It is commonly known that early forms of legal procedure were grounded in
vengeance: the effort to right a wrong by feuds, the feud soon giving way to
arbitration. The early recourse to arbitration in English law had to do with
various kinds of intentional violence, with a demand for redress. The forms of
personal violence were listed, since they were common: melees, blows, wounds,
flogging, insults. Thus the first legal procedures were concerned with acts of
violence, inflicted on the appellor. The starting-point of our legal system was
the determining of liability for acts of personal violence.
By distinguishing the various forms of personal violence a rule of law was
born identifying certain basic rights that could not be violated without
What the rule of law tried to accomplish was the replacement of feuds, with
their house-burnings and mayhem, for some sort of compensation. It was an
attempt to find an alternative to vengeance. The appeals de pace et plagis
in early English law indicates the attempt to find an alternative to vengeance
and the feuds it inspired.
Two things were required for the appeal to be made in a court of law: an
intentional assault that required redress, and the appellor had to show that he
raised the hue and the cry: the claim that he had been wronged.
It was out of this process of wrongful assault and appeal to the law that our
court system was born, and that same process is involved, although highly
refined, in the courts of today. That is why without litigation in the courts,
there is no possibility of righting a wrong, of identifying a right, and the
only recourse must be to feuds and violence, action in the streets, and
ultimately further violence and something resembling, in the case of abortion, a
The Civil Rights violations of the 1940,s, 1950's and 1960's in the United
States demonstrate what happens when a nation takes to the streets rather than
the courts, or merely engages in a national debate on some critical issue. The
result is more violence, more bloodshed, and the resort to vengeance and feud
for the redress of wrongs.
The first theory of law to develop in an ordered society was the replacement
of a theory of retribution by a theory of prevention, thus the creation of a
Bill of Rights and the redressing of all inflicted wrongs in the courts. But for
this preventive system to work, rules of evidence had to be legislated, so that
the fact of the wrongful injury could be ascertained. Without rules of evidence,
there is no proof that a wrong has been done, a right has been violated, or that
indemnity under the law can be demanded and is required.
In the case of abortion, no one has demonstrated in a court of law, following
accepted rules of evidence, that a wrong has been done. The claim is
made, and has been made in legal briefs that have been brought before the
courts. But no one has gathered the data, empirical, physical, medical, that the
unborn have been harmfully wronged by the act of abortion. Since the unborn is
not recognized by law to be the subject and object of laws, the act of abortion
is not considered an act of personal injury.
The juridic ancestors of the Roe v. Wade decision in the history of
Supreme Court decisions are the
Dred Scott v. Sandford decision of 1857, denying the Black slave rights
under the Constitution; the
Plessy v. Ferguson decision of 1896, denying the Black citizen equal
rights with the White citizen; the
Lochner v. New York decision of 1905, denying the rights of workers; and the
Hammer v. Dagenhart decision of 1918, sanctioning Child Labor.
All four of these decisions were reversed by the Supreme Court, with the
exception of Dred Scott v. Sandford, which was reversed by the 13th, 14th
and 15th Amendments of the Constitution.
There are two legal routes to overturning the Roe v. Wade decision.
First, to show by legal reasoning and precedent that the general intent of the
Declaration of Independence and the Constitution of the United States applies to
the unborn, with the same rights and immunities that apply to the born.
Second, to demonstrate from known principles of law that the mother of the
unborn child has only a divided dominion over the person of the
child, not an absolute dominion. This requires the demonstration of a totally
new right implicit in the Constitution itself: the Right of Dominion, the basic
right in which all other rights and contained. From this basic right, applied to
the unborn, a new development in Constitutional Law is born: Embryonic Law: the
Bill of Rights of the Constitution of the United States applied to the unborn.
A very common phenomenon, and one very familiar to the student of history, is
this: the customs, beliefs, or needs of a primitive time establish a rule or
formula of law. In the course of the centuries the custom, belief, or necessity
disappears, but the rule remains. The reason which gave rise to the rule has
been forgotten, and ingenious minds set themselves to inquire how it is to be
accounted for. Some ground of policy is thought of, which seems to explain it
and to reconcile it with the present state of things; and then the rule adapts
itself to new reasons which have been found for it, and it enters on a new
career. The old form receives new content, and in time the form modifies itself
to the meaning which it has received. The question of abortion illustrates this
course of events very clearly.
The ancient legal principle relating to abortion is contained in the
Commentaries of Sir William Blackstone on English Common Law. This principle
itself has a long history in ancient instincts and primitive taboos and
gradually became a firm tenet of civilized societies.
That principle is this: qui in utero est pro jam nato habetur, quoties de
ejus commodo quaeritur. The traditional intent and content of this tenet was
discarded and declared obsolete by the Roe v. Wade decision of 1973,
because no one in the pro-life legal community was aware of it, and therefore,
no legal arguments were brought to bear when the issue of the abortion
laws of Texas were brought before the court. It is this failure to attack the
question of abortion legally and constitutionally, that is responsible for the
present impasse on the matter in the United States.
I place these reasonings before Your Holiness, in an abbreviated form, hoping
that they will convince you that your initiative is needed if the Roe v. Wade
decision is to be overturned in the courts of the United States. A personal
envoy of your own, with the rank of Archbishop, to carry forward this legal
battle is the only assurance, it seems to me, that anything will be done by
Catholics in the United States to overturn this decision.
New Perspectives on the Defense of the
Unborn as a Constitutional Issue