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On the Status of the Abortion Question in the United States of America

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 punitive consequences.

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 national feud.

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


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