Roe Can Fall

Fr. Frank Pavone
National Director of Priests for Life
November 05, 2001

Study Constitutional history, and you can conclude that the days of Roe vs. Wade are numbered. The reason is that the foundation of the Constitution itself, and the direction of its history, is the recognition of the equal dignity of those who, at various times, were deprived of their rights and suffered violence which was given legal cover under a different name. This legal cover was often mistakenly recognized by the Supreme Court for a while, but then such decisions were overturned.

Dred Scott v. Sandford (1856) is the most commonly cited instance. The slaveholder's right to property eclipsed and subsumed the slave's right to freedom. But the Constitution was eventually amended to correct the error.

Decisions like Lochner v. New York (1905) show us another error: employers' right to contract eclipsed and subsumed the workers' rights to humane conditions and hours. These abuses were corrected by subsequent Supreme Court decisions like Muller v. Oregon and Bunting v. Oregon.

The "Separate but equal" doctrine of Plessy v. Ferguson (1896) sanctioning segregation was overturned by Brown v. Board of Education some 58 years later.

Erroneous decisions like Hammer v. Dagenhart (1918) institutionalized child labor. But this was overturned 23 years later by United States v. Darby. A new development -- a "pedagogical moment" -- occurred here in Constitutional law. The question was whether constitutional rights applied to children too. The answer was yes.

Now it is time for the "embryonic moment," the recognition that the rights of the Constitution apply also to the unborn child. Until Roe, only state law addressed the unborn. Now their status has become a Constitutional issue, and must be developed by using Constitutional principles. Once again, an act of violence is given legal cover by some other right, in this case the "right to privacy."

Constitutionally, there is no precedent on abortion. A concept could be used, however, from the "Law of Bailments," which is defined as the "divided dominion" of personal property which contemplates custody in one part and ownership in another. When you deposit your money in the bank, you have absolute dominion over it, while the bank has a "trust-dominion."

Analogously, the child in utero has absolute dominion over his/her own person. The mother has a trust dominion rather than an absolute dominion that would allow her to destroy the child.

Many reversals of Supreme Court cases came about when new evidence was brought forward that made it clear that someone's rights, not previously recognized, were being violated. Thus, Louis Brandeis brought forward the facts about how workers were being harmed. With some 200 embryological sciences, such evidence, combined with new legal concepts, can challenge Roe in the same way its erroneous ancestral decisions were challenged.

Fr. Clifford Stevens, a priest of the Omaha Archdiocese, founded the National Organization for Embryonic Law to conduct the kind of research I have traced above, and to call for attorneys to seize the "embryonic moment" of Constitutional history that we are now in. The research can be found on our website, Judging from past Constitutional history, Roe will go the way of other discarded lies.

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