Russell and Duenes

Roe: The Oral Arguments

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My Constitutional Law professor argued a point about abortion in class this week based on the oral arguments in Roe v. Wade. The oral arguments are the arguments the opposing attorneys get to make before the Supreme Court, which are then weighed by the justices, along with the briefs and other written materials that have been submitted to the Court. Some of the exchanges are noteworthy, and I include them here, with my comments interjected at various points.

For a bit of background, at issue in Roe was a Texas statute, which the Court said made “it a crime to ‘procure an abortion,’ as therein defined, or to attempt one, except with respect to ‘an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.’ Similar statutes are in existence in a majority of the States.” This leads into an exchange between Justice Potter Stewart and the attorney arguing on behalf of the Texas statute, which took place during the initial oral arguments in December, 1971.

JUSTICE STEWART: How do you suggest, if you’re right, how do you… what procedure would you suggest for any pregnant female in the State of Texas ever to get any judicial consideration of this constitutional claim?

MR. FLOYD: Your Honor, let me answer your question with a statement, if I may. I do not believe it can be done. There are situations in which, of course as the Court knows, no remedy is provided. Now I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice. It’s like, more or less, the first three or four years of our life, we don’t remember anything. But, once a child is born, a woman no longer has a choice, and I think pregnancy then terminates that choice. That’s when.

Mr. Floyd’s argument is radical, and also right. Most are afraid to utter it today because it calls into question one of the most powerful idols in our nation: sexual autonomy. Mr. Floyd is properly going back to before the pregnancy, and says, in effect, “the die is cast at the point of sexual intercourse.” But we don’t want the die to be cast there, because we want to say and believe that people are free, free, free to have sex whenever they want, with whomever they want, in whatever manner they want, and if this results in a pregnancy, then it’s not right to saddle the woman with the pregnancy, or to use Barack Obama’s term, “punish” her with a child, particularly when the man is not saddled with it. This is idolatry, straight down the middle, for it exalts radical, individual human autonomy above anything else, even the survival of the next generation. This is the idol that must be killed, yet how? Legislation surely cannot do it. And it won’t get done when we Christians are largely embarrassed openly proclaim and exemplify the beauty and truth of God’s teachings about sexuality.

MR. FLOYD: Mr. Justice…the Court of Criminal Appeals did not decide the issue of privacy. It was not before the court; or, the right of choice issue. The State – the State Court, the Court of Criminal Appeals, held that the State had a compelling interest because of the protection of fetal life —- of fetal life protection. They recognized the humanness of the embryo, or the fetus, and they said we have an interest in protecting fetal life. Whether or not that was the original intent of the statute, I have no idea.

JUSTICE STEWART: Yet, Texas does not attempt to punish a woman who herself performs an abortion on herself.

MR. FLOYD: That is correct, Your Honor. And the matter has been brought to my attention: Why not punish for murder, since you are destroying what you – or what has been said to be a human being? I don’t know, except that I will say this. As medical science progresses, maybe the law will progress along with it. Maybe at one time it could be possible, I suppose, statutes could be passed. Whether or not that would be constitutional or not, I don’t know.

This is where things get dicey. Is abortion murder? If it is, does that not change our penal system greatly, seeing as we commit over a million abortions a year? Does this matter? My professor seemed to think it does. His argument was that, if we recognize the unborn as full human beings with all the rights, privileges, and immunities that we born humans enjoy, won’t that have a heavy, and perhaps unworkable, effect on our understanding of, say, tort law, negligence, and other practicalities of our civil and criminal code? Won’t it also cut into what we have taken to be the bodily inviolability of the woman? Won’t it curtail her freedoms to a substantial degree? Indeed it would, but whether or not that should be the controlling factor, I’ll leave for another discussion. I would only say at this point, we know from history that protecting African-Americans under the law after the Civil War also caused incredible, unforeseen upheaval, and so did desegregation of our nation’s schools. But no one today argues that those problems, massive as they were, were insurmountable, or should somehow have controlled whether we give full freedom to African-Americans.

Here is an exchange between Mr. Floyd and Justice Marshall:

MR. FLOYD: We say there is life from the moment of impregnation.

JUSTICE MARSHALL: And do you have any scientific data to support that?

MR. FLOYD: Well we begin, Mr. Justice, in our brief, with the- the development of the human embryo, carrying it through the development of the fetus from about seven to nine days after conception.

JUSTICE MARSHALL: Well, what about six days?

MR. FLOYD: We don’t know.

JUSTICE MARSHALL: But the statute goes all the way back to one hour?

MR. FLOYD: I don’t… Mr. Justice, there are unanswerable questions in this field.I…

JUSTICE MARSHALL: I appreciate it.

MR. FLOYD: This is an artless statement on my part.

JUSTICE MARSHALL: I withdraw the question.

Without being too hard on Mr. Floyd, I really think he could have made a better answer. First, he could have said that “science” isn’t the only way of knowing things, and our Courts are not bound to only affirm things allegedly provable by “science.” But leaving that aside, he also could have said, “The science tells us that everything the embryo needs in order to become a fully-developed, mature human being, is within the embryo from the moment of conception, and left to natural processes of self-direction, the human embryo will do just that. Further, the sperm is human, the egg is human, they are both alive, so when they come together, what we have is an embryo that is human and that is alive. Does the embryo need more than this to be a full human being as you and I are full human beings?”

More of this last issue gets taken up in the oral re-argument which took place in October, 1972, which I will visit in a subsequent post.



Written by Michael Duenes

September 16, 2012 at 7:56 pm

One Response

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  1. “Now I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice.” Amen.

    russell and duenes

    September 17, 2012 at 9:07 am

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