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Katarzyna Gęsiak: The USA has a beautiful tradition of protecting the lives of unborn children

Published: 23.05.2022

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The opinion of the majority of the US judiciary in the case of the famous Roe v. Wade judgment caused a great stir in the public, mainly American opinion. It was published in early May on the website Regardless of the final shape of the Supreme Court's decision, the conclusion formulated in the title stems directly from the circumstances widely cited in the explanatory memorandum to the bill.

The myth of the pro-abortion United States

Its author - one of the judges - presented a number of arguments and evidence confirming the defectiveness of the judgment issued by the Supreme Court of the United States in the case of Roe v. Wade in 1973. In this judgment, the Supreme Court found that the 14th Amendment to the US Constitution of 1868 guarantees women the right to abortion as an element protected under this Amendment to the right to liberty. In a subsequent 1992 US Supreme Court judgment in the Planned Parenthood v. Casey case, abortion rights were largely upheld. An analysis of the content of the right to liberty based on historical facts shows, however, that the right to abortion adopted in the USA at the beginning of the 1970s is fundamentally at odds with the tradition of protecting the lives of unborn children established in the common law system.

Despite the fact that the draft opinion does not have to coincide with the final shape of the soon-to-be judgment, its author - judge Samuel Alito emphasized an extremely important issue concerning the "history" of the right to abortion in the common law system. Therefore, regardless of the final decision of the Supreme Court, the facts cited in the opinion regarding the history of US legislation relating to abortion should not, rationally, change. At best, they can be kept silent, or additional ones can be cited, assuming that the topic has not been exhausted yet.

History on the side of life

Outlining the position of the majority of the panel, the draft opinion noted that the invocation of the 14th Amendment to the US Constitution as the basis of the right to abortion requires showing that the right was "deeply rooted in [American] history and tradition and whether it is necessary in" an orderly freedom system »[of the American people]”. Judge Alito argues that historical issues in this respect are necessary to define the new component of the "liberty", which is protected under the 14th Amendment, and which is a broad concept, defined in various ways. . The author of the opinion contrasted the natural human tendency to misidentify the real scope of this concept with subjective feelings as to what this scope should be in the correct, in accordance with the intention of the legislator, interpretation of the concept of "freedom". For this reason, he noted, the Supreme Court has long remained skeptical about recognizing rights not explicitly mentioned in the US Constitution.

Turning then to considerations aimed at answering the fundamental question of whether the right to abortion belongs to American history and tradition, and therefore whether it is part of the "freedom" protected under the 14th Amendment, Judge Alito referred to the following facts. In the nineteenth century, the vast majority of states passed laws that made abortion criminally liable at any stage of pregnancy. By 1868, when the 14th Amendment was ratified, three-quarters of the states, ie, 28 of a total of 37, had passed laws criminalizing abortion regardless of the stage of pregnancy in which it was performed. Of the 9 states that did not penalize abortion in 1868, 8 introduced criminal liability until 1910. In support of the arguments presented, Appendix A to the draft opinion provides a chronological list of state laws that penalized abortion at any stage of pregnancy, in force in 1868. i.e. the date of adoption of the 14th Amendment, as well as those passed until 1910. The tendency to limit abortion by criminalizing it was also visible in the territories that became the last 13 States - all of them introduced criminal liability for abortion at any stage of pregnancy, starting with the Kingdom of Poland Hawaii in 1850 and ending with New Mexico in 1919 (for these states, the author of the draft provided a chronological list of laws prohibiting abortion in Appendix B). As is clear from the findings of the Supreme Court taken from the justification of the judgment in the case of Roe v. Wade, until the end of the 1950s, all states, except four and the District of Columbia, prohibited abortion "anywhere and at any time, except in cases of saving or saving the mother's life" [6]. This consensus regarding the criminality of abortion continued until the Roe v. Wade judgment in 1973. Also at that time, i.e. in the early 1970s, the vast majority - in 30 states - of abortion was still prohibited by at any stage of pregnancy, except in the case of saving mother's life.

Abortion law is not a component of freedom

Taking into account this historical context, the author of the draft opinion concluded that "the right to abortion is not deeply rooted in the history and tradition of the American people", on the contrary - "the uninterrupted tradition of prohibiting abortion under penalty of perjury lasted from the earliest days of common law until 1973. ". Hence, if the Supreme Court ruling in Roe v. Wade had had the "history and tradition of the nation" in mind, it would have to come to such conclusions as in the landmark decision in Washington v. Glucksberg, which the author of the opinion paraphrased as follows: "attitudes towards [abortion] has changed (...), but our laws consistently condemn and continue to prohibit this practice. "

The rules on the legality of abortion were changed by a court decision. However, this does not affect the fact that the right to abortion established in the early 1970s is not based on American history and traditions. Both of these elements of the identity of the American people will remain unchanged. They determine that the right to abortion is not a component of the "freedom" protected by the 14th Amendment. Clearly part of the US tradition is to protect the lives of unborn children.

Katarzyna Gęsiak - director of the Ordo Iuris Center for Medical Law and Bioethics

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