Philip Hilton pontificates voluminously ad nauseam,

It is a common failure among both pro-choice and pro-life people to denounce (or acclaim) Roe v. Wade as if they were talking about an issue on the Senate floor. The fact is that they are ignorant of the workings of justice. A piece of legislation is different than a piece of judicial interpretation. The two are immeasurably different, and should not be conflated. This essay will define briefly the characteristics of a good judicial decision, distinguishing them from the elements of a good legislative decision, and then will discuss Roe v. Wade in this light.

I.

In science we talk about description and prescription, noting that unlike law, which prescribes, science merely describes. This is also the the case when we distinguish between the legislature and the judiciary functions. The legislature alone has the power to prescribe something by law. That is, only the legislature can say that murder is illegal. The judiciary cannot overrule that, and if the legislature adequately define ‘murder,’ ‘illegal,’ and ‘is,’ then, as far as the judiciary is concerned, all is well. Yet if the legislature does not sufficiently distinguish between murder and homicide, and a case comes before the judiciary wherein these are confused, then it is the responsibility of the judiciary to find the meaning of the law.

Of course, the highest law in the land is the constitution. Second come formal laws. The third highest law is known as common law — essentially, traditional law. Finally, previous judicial decisions can serve as law, although where needed, judges are permitted to overturn these decisions, known as precedents. However, they cannot overturn decisions made by a higher court.

Implicit senses are applicable in all cases. For instance, do not steal does not imply that you must give; but it certainly implies that you may not commit highway robbery. An implicit sense of the constitution remains higher than an explicit statute, but not so high as an explicit sense of the constitution.

So the whole point of the judiciary is not to create law, but to interpret created law. Of course, judges do not always uphold their trust. The commerce clause has been a consistent victim of over-interpretation. The commerce clause permits the government to regulate interstate commerce, and some judges to tried to extend it to include gun-control, which supposedly influences interstate commerce. In that case, however, the court declared:

“We pause to consider the implications…the government admits…that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce…”

II.

Having mentioned these characteristics and methods of the court I would also like to outline briefly the reasons behind them. Law in Britain and America has always aimed at being predictable, understood, and uniform. If the law were unpredictable, or unevenly applied, it would result in difficult working conditions for the citizens of the nation. The law ought to be generally understood by those who know it, and uniformly applied. Any other kind of law-system is merely injustice.

To prevent injustice, and to create uniformity in judicial decisions, British law has long depended upon precedent, unlike continental European law. Judges are supposed to rely on what previous judges determined in similar case, and to follow this when correct. Otherwise, they ought to overturn it. Nevertheless, since the precedent is generally followed, it tends to make the working of the law predictable.

Common law (essentially “what people think is right”) is also taken into mind. In addition, relevant statutes and the constitution play a part, as highlighted above. In sum, all is done that makes the work of the law predictable and uniform.

If judges, however, merely enforced their whim in each case, instead of interpreting the law, it’s obvious how much the people would suffer. The law would cease to be uniform, varying, in fact, with the political opinions of the justice in question, and the Supreme Court would become a kind of long-standing legislative body from which there would be no redress.

This would result in citizens being tried, not by their own law, made through elected representatives, but by the judge’s whim.

III.

The case of Roe v. Wade is a good instance of judicial proceeding. The full text may be found here (http://www.tourolaw.edu/Patch/Roe/index.asp). Jane Roe, desiring an abortion, declared the Texas statute prohibiting all abortion except in medical emergency unconstitutional. Although by the time the petition reached the Supreme Court she had delivered her child, the Supreme Court reasoned that her petition could still be heard, because otherwise no pregnant woman would be able to obtain justice, since the course of pregnancy is generally shorter than the time it takes a petition to reach the Supreme Court.

The case turned on five points. First, the definition of personhood, which, according to the XIV Amendment does not included prenatal fetuses. Second, the commencement of life. Third, the woman’s right to privacy, established by the precedent of Griswold v. Conneticut. Fourth, the State’s interest in the health of the woman. Fifth, the State’s interest in potential life.

The most significant factor of this verdict was the XIV Amendment’s definition of personhood. There is little doubt that the XIV Amendment does not include prenatal fetuses in its definition of personhood. The terminology in the first section specifically mentions “born” as a criterion. Consequently, in dealing with the rest of the case, we must remember that there was no specific constitutional statute which protects the fetus. On this point the constitution was silent.

The reason the court did not regard the fetus as life from the moment of conception is simple, and historic. They noted that “A recent review of the common-law precedents argues, however, that…even post-quickening abortion was never established as a common-law crime.”

And further on:

“It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.”

The view of abortion of that time is naturally of importance in determining the view of abortion within the Constitution, especially with regard to whether they would have considered it within the “zone of privacy”, or considered it protected by the XIV Amendment.

The court also did not believe they could commit themselves to one theory of life (i.e, whether life begins at conception or not), noting that even the Catholic Church had changed its opinion on this over the years. Consequently, the fetus was not constitutionally considered a life or a person, and was not protected by any law except that of Texas.

Since the constitution does not mention any rights of the fetus until conception, the woman’s right becomes one of the principle considerations. In Griswold v. Conneticut, the court ruled that Conneticut’s law banning contraceptives was unconstitutional. However, in that case the court did not simply invoke the IV Amendment, but declared that the enforcement of this law violated a zone of privacy, implied in the I, III, IV, V, IX
and XIV Amendments. The court in Roe v. Wade made reference to this zone of privacy, which was key in striking down the Texas law.

Because the Texas law, like Conneticut’s contraceptive law, infringed to some extent on the woman’s zone of privacy, the court ruled that it be annulled. Nevertheless, it did admitted that the State did have an interest in both the health of the woman and the potential life of the child.

It further declared that the “zone of privacy” is not an unqualified right, but, as the court proceeded to say “at some point…the health of the mother or that of potential human life, becomes significantly involved.” Since statistics showed that it was after the first trimester that mortalities in abortion equalled mortalities in normal childbirth, the court determined that after this point, the State had legitimate interest in the woman’s health. Moreover, since fetuses were viable outside the womb only after the third trimester, it deemed that only after that time did the State have a legitimate interest in the potential human life.

This laid the foundations for the trimester approach to abortion. Although this approach was criticized in later years as being overly “imperialistic”, it seems to difficult to see how the court could have ruled otherwise, apart from overturning Griswold. v. Conneticut. Having decided that the State law was unconstitutional, to simply annul it would have struck down every abortion statute, and permitted every kind of abortion. Consequently, it was necessary to qualify the decision by explaining how and when the other interests of the State came to bear on abortion.

IV.

This is a reasonable legal position in the light of Griswold v. Conneticut. Moreover, the lack of specificity in the XIV Amendment is critical in allowing this decision. Because it not define when life or personhood begins, it prevents fetuses from receiving protection under its laws. Of course, Griswold v. Conneticut, with its “zone of privacy” is the main underpinning of the case, absent specific protection by the XIV Amendment. Since the Texas law was considered to violate this zone of privacy, as had Conneticut’s contraception law, it was struck down.

Again, however, the fight to end abortion ought not to rest on simply getting “pro-life” people into the courts. Rather, it should rest on getting people into the courts who have a better understanding of the constitution. If Griswold v. Conneticut is indeed a false reading of the bill of rights, among other things, then it would be struck down by a conscientious judge for other reasons than his opposition to abortion.

The appointment of judges as if they were supreme legislators, who impose their political whim for the duration of their lifetime is a great mistake. Such a political handling of the courts will eventually result, not in justice for infants or mothers, but in injustice and court imperialism for everybody. Do unto others as you would have them do to you. Should judges interpret the law, or simply make it up as they go? That is the question before us, when we think of the judicial arm in this way. The latter case, may, in the short term, yield the desired result of stopping one alleged injustice. In the long term it will yield a hundred times as many.

People often complain that lawyers merely get through legal loopholes. This is true. And it is the responsibility of the legislators to remedy this. Yet, far more important than individual loopholes is the overall working of the justice system. If judge and jury vote according to “what they think is right” instead of according to the law, we have degenerated. Justice may have been done. But again, this kind of decision-making returns us once again to the question: would you rather to go before a court where the judges interpret the fixed statutes of your government, or where the judges do whatever they want? This is not a fine distinction about angels and pins. This is the difference between despotism and law. Like the difference between capitalism and socialism its immediate effects may not be obvious. Yet, like capitalism and socialism, the final result of each path is widely different.

In summary, whether a justice agrees with abortion or not is completely irrelevant to his opinion on Roe v. Wade, or to any other judicial decision. Obama has said that abortion is above his pay level. Regardless of how this applies to the Presidency, it applies most powerfully to the Supreme Court. Justices are appointed to interpret the law, not to make it. And so in a real sense what they think about abortion per se is irrelevant compared to what they think about the XIV Amendment and Griswold v. Conneticut.

I hope in this essay I have succeeded in clarifying the difference between legislative and judicial decisions.