On Thursday, Tommy Christopher penned a piece for Mediaite criticizing a line about abortion from President Trump’s State of the Union (SOTU) address.
“These are living, feeling, beautiful babies who will never get the chance to share their love and dreams with the world. And then, we had the case of the Governor of Virginia where he basically stated he would execute a baby after birth,” the president said during his Tuesday speech.
Christopher’s article is rife with debatable opinions, but two paragraphs in particular stand out as particularly questionable:
Since the 1970s, there have been hundreds of acts of violence by members of the anti-choice movement, egged on by the mantra “abortion is murder.” This is a broader version of the Trump lie, but it is still a lie.
The unspoken implication of the phrase is that abortion is the philosophical or moral equivalent of murder because the fetus is equivalent to a baby, but the phrase itself is a lie. Abortion is legal, and protected by the constitution.
Let’s break this down.
Abortion is the deliberate termination of a developing human being, which has been genetically distinct from its progenitors since fertilization.
According to the American College of Pediatrics (ACP): “At fertilization, the human being emerges as a whole, genetically distinct, individuated zygotic living human organism, a member of the species Homo sapiens, needing only the proper environment in order to grow and develop. The difference between the individual in its adult stage and in its zygotic stage is one of form, not nature.”
The only differences between a fetus, and infant, a toddler, a teenager, and an adult are developmental and geographic. The body and mind of a one-year-old is not as developed as the body and mind of an adult. Similarly, the body and mind of a fetus is not as developed as the body and mind of a one-year-old.
An abortion, whether done immediately after fertilization or at the end of fetal gestation, is the termination of a genetically unique human being.
As for Christopher’s assertion that abortion is “protected by the Constitution,” there are many who would disagree. When Roe v Wade was decided in 1973, Justice Harry Blackmun’s majority opinion hinged on a woman’s “right to privacy.”
Blackmun wrote in part (citations omitted):
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive.
The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
However, in his dissent, Justice William Rehnquist wrote in part (citations omitted):
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.”
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
In the years following the Roe decision, legal scholars have debated its merits.
In his infamous 1973 article titled, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” constitutional scholar John Hart Ely claimed that Roe is “bad constitutional law,” writing in part:
What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interest that legislatively prevailed over it. And that, I believe – the predictable early reaction to Roe notwithstanding … is a charge that can responsibly be leveled at no other decision of the past 20 years. At times, the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.
…The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business.
…Roe v Wade seems like a durable decision. It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court – it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s – it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.
Edward Lazarus, who clerked under Justice Blackmun, wrote in 2002:
As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose. … Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.
Even Harvard University’s Laurence Tribe wrote of the Roe v Wade decision:
One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.
These criticisms are not from pro-life activists, but from mostly pro-choice legal scholars who view the Roe decision as fundamentally flawed.
Tommy Christopher’s op-ed tells us that the pro-life community lies when it says “abortion is murder,” it tells us that abortion is “protected by the constitution,” and it implies that because something is legal, it is acceptable. However, as noted above, abortion is the ending of a genetically unique human life, and the constitutional ground upon which alleged abortion rights stand is essentially non-existent.