Op-Ed: If Babies Have Other Rights Before Birth, Why Don't They Have the Right to Life?


As Senate confirmation hearings begin for Judge Amy Coney Barrett, one word energizes and mobilizes Senate Democrats above all others:


What began in Roe v. Wade as a bizarre, illogical scheme of validating some abortions by allowing or denying state abortion regulations depending on the trimester of pregnancy in each abortion case has now slithered into something far more insidious: a blood-sucking monster featuring (1) late-term abortion-on-demand, (2) partial-birth abortion-on-demand (killing the baby in the midst of birth) and now, (3) Democrat-justified after-birth abortion, or simply killing the baby after birth.

Remember Democratic Virginia Gov. Ralph Northam’s bone-chilling words, spoken in a genteel Southern dialect as if to mask the evil under the accent:

“The infant would be delivered” and “the infant would be kept comfortable” and “then a discussion would ensue between the physicians and the mother” on whether to let the baby live or to kill the baby.

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Nary a Democrat has denounced Northam. Not Biden. Not Harris. Not one.

They can’t denounce. Their constituency would revolt.

But aside from the reprehensible moral implications flowing from Roe, from a legal standpoint, Roe v. Wade remains a constitutional train wreck, the high pinnacle of meddlesome judicial activism by a liberal Supreme Court.

Let’s revisit Roe’s history.

Do you think the Supreme Court will eventually overturn Roe v. Wade?

Eight years before Roe, the Supreme Court heard a 1965 contraceptives case called Griswold v. Connecticut. In Griswold, the court began its tenuous legal stretch to later justify abortion by creating a constitutional “right to privacy” regarding contraceptives.

Because the court wanted to create a constitutional right of privacy for contraceptives, as opposed to leaving the issue to the states, it spun up some flowery language and invented the phrase, “the penumbras formed by the emanations,” a phrase found nowhere in the Constitution.



Who talks like that?

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Now, having invented “the penumbras formed by the emanations,” the Supreme Court was set and ready for abortion.

Along came Roe in 1973.

To constitutionally justify abortion, the court cited its Griswold decision ten times and its made-up “penumbras” phrase at least three times. Suddenly, the Constitution allowed abortion, 186 years after the fact.

Just like that. From a “constitutional right” to contraceptives to a “constitutional right” to abortions.

Such marks the hallmark of judicial activism: Make up stuff in one case, then make up more stuff in another case, based on made-up stuff from the first case. Ignore the Constitution because activist judges prefer making law over interpreting it.

But Roe v. Wade was decided before ultrasound. And this marks a key to now reversing it.

Before ultrasound, the court’s head-in-the-sand approach, imagining that an unborn baby was not human, proved much easier.

But now, ultrasound shows a beating heart, moving hands, a head tilting back and forth and little moving legs and fingers. Sometimes, we even see the baby smile.

Post-ultrasound, calling the baby part of someone else’s body is less logical than believing in the tooth fairy.

In the law, we call ultrasound “newly discovered evidence.”

“Newly discovered evidence,” based on new technology, allows reversal of bad decisions like Roe.

By analogy, new DNA evidence techniques have reversed many badly decided cases of Americans wrongly convicted before DNA became available.

Roe was decided in 1973.

Thirteen years later, in 1986, Dr. Kazunori Baba of the University of Tokyo developed 3D ultrasound technology, capturing three-dimensional images of babies in the womb. Like the advent of DNA evidence, ultrasound evidence became a factual game-changer.

But what about the constitutional basis of Roe?

Roe ignores the baby’s rights under the Fifth, Sixth, and 14th Amendments to the Constitution.

Under the Fifth and 14th Amendments, no person shall be deprived of (Fifth Amendment) and no state shall deprive (14th Amendment) “any person of life, liberty, or property, without due process of law.”

“Due process” means (1) notice and (2) an opportunity to be heard.

With an unborn baby, herein lies Roe’s first constitutional failure.

Roe v. Wade ignores the baby’s due process rights before taking his life.

Put another way, before taking an unborn baby’s life, the baby is first entitled to notice of the charges against him. That’s impossible under Roe.

But even if the baby could accept and understand the notice that his life was about to end, there’s no opportunity for a hearing.

Roe ignores the baby’s Fifth and 14th Amendment rights to notice, and then a hearing, prior to execution.

The baby’s Sixth Amendment rights are also ignored by Roe.

In addition to the right to trial by jury, the Sixth Amendment guarantees Americans facing a loss of life or liberty the right (1) to be informed of the nature and cause of the accusation; (2) to confront adverse witnesses; (3) to call to trial favorable witnesses; and (4) to have the assistance of counsel.

The baby, legally entitled to inherit his parents’ property before birth, among other pre-birth rights, loses his Sixth Amendment rights under Roe v. Wade, which is an illogical contradiction.

It’s worth noting that some thirty-eight states allow criminal prosecution of persons who commit violent acts against unborn babies. Yet abortionists may take the baby’s life with virtual impunity, marking another illogical contradiction created by Roe.

Thus, Roe deprives unborn babies, who already have other legal rights, of their constitutional right to due process, to trial by jury, to assistance of counsel and to confront witnesses prior to execution.

It’s not too late for the Supreme Court to correct the tragedy of Roe. And there’s precedent for righting wrongs.

In Brown v. Board of Education, the court struck down public desegregation, reversing its own earlier foolish decision in Plessy v. Ferguson, where it legalized another made-up fiction phrase called “separate but equal.”

And as it did to Plessy, when it ended “separate but equal,” the Supreme Court should flip Roe v. Wade faster than a short-order cook flipping a pancake at Waffle House.

The time has come to reverse Roe v. Wade.

The Constitution demands it.

The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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Don Brown, a former Navy JAG officer, is the author of the books "Travesty of Justice: The Shocking Prosecution of Lt. Clint Lorance" and "Call Sign Extortion 17: The Shoot-Down of SEAL Team Six." Brown is also a former military prosecutor and a former special assistant U.S. attorney. He can be reached at and on Twitter @donbrownbooks.