Rita Joseph: Supreme Court Should Treat Abortion as the Worst Kind of Discrimination


Come March, the Supreme Court will examine June Medical Services v. Gee, bringing fresh scrutiny to the “undue burden” concept applied to women wanting to abort their children.

A reformed Supreme Court should examine the far more serious undue burden test of being “wanted” inflicted by Roe v. Wade itself on each unborn child’s right to stay alive when threatened with abortion.

Question: What makes a human being lawfully abortable?
Answer: Being “unwanted” by her/his mother.

That was the answer proffered by the Supreme Court majority in Roe v. Wade in 1973. They levied an undue burden test on the unborn at risk of abortion with the novel requirement that the child must be “wanted” in order to deserve any right to go on living. They introduced the concept of lawful killing of “the unwanted child.”

The undue burden concept emerged in the Supreme Court’s 1992 Planned Parenthood v. Casey. In 2016 Whole Woman’s Health v. Hellerstedt, the Court ruled that requiring abortionists to have hospital admitting privileges was “a substantial obstacle to women seeking abortions.”

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In focusing exclusively on this splinter of undue burden, progressive justices ignored the log in their own eyes.

The undue burden test when applied to the inconvenience suffered by a pregnant mother wanting easier abortion access pales into insignificance when compared to the injustice of killing an unborn child because she or he has failed Roe’s undue burden test of “being wanted.”

Effectively, Roe dictated that “the unwanted child” at risk of abortion is not entitled to legal protection to go on living.

No Due Process for “The Unwanted”

Do you expect the Supreme Court to overturn Roe v. Wade?

The Supreme Court has failed these smallest members of “our Posterity” dubbed unwanted. Denied due process, an innocent unborn child is saddled with the undue burden that she or he must be “wanted” to avoid being aborted. No legal defense whatsoever against her/his unwantedness is presented on the child’s behalf.

Contrary to Roe’s finding, it is not “a woman’s right” to demand an abortion on the totally invalid grounds that her unborn child is “unwanted.” Rather, it is the exercise of a lethal form of discrimination against her child.

Abortion “rights” cannot be justified by Justice Harry Blackmun’s sympathy in Roe for “the distress, for all concerned, associated with the unwanted child.” He failed to understand that the quality of unwantedness is not inherent in the child.

The child is not to be blamed or held accountable and punished by death for this quality. Rather, the unwantedness is per se an attitudinal attribute of the child’s mother (and/or influential parties such as the father, family members, friends or even employers.) It is this prejudice that needs reform.

The child is not to be placed at risk of abortion because others reject her or him as curtailing pursuit of their own personal “wants.”

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At the time Roe was decided, it was assumed “unwantedness” must remain a permanent attribute like skin color or race. This negativity was exploited by pro-abortion attorneys such as Catherine Roraback to argue for abortion of these children:

“Children who are unwanted suffer from emotional starvation, often exhibit delayed physical and mental development; they cannot do as well in school, have greater need for psychiatric care, have a higher incidence of juvenile delinquency and child welfare referrals, and later in life need greater public assistance.” (Connecticut Legislature Hearing on Abortion, May 19, 1972)

There was no understanding that abortion — the prenatal killing of “the unwanted child” — is not a humane solution to the problem of a child’s initial unwantedness.

Roe’s errant reading of the Constitution disdains any reference to the Court’s duty to protect everyone’s right to life — even “the unwanted.” For mothers too, there is no room in the Constitution for unchecked egocentrism that insists our own rights are superior to the rights of other human beings (“our Posterity”) who through no fault of their own depend initially on us (“ourselves”) for care and protection.

The Republic’s founding principles of the inalienability of inherent natural rights and of equality and of solidarity — “ourselves and our Posterity” — have the authority of reason. They guard against, inter alia, selfish individualism that would award the blessings of liberty exclusively to ourselves at the expense of our posterity.

Why then this autocratic power conferred on the child’s mother to apply the undue burden test of unwantedness enabling lawful abortability?

Jekyll and Hyde Approaches To Legal Protection for the Unborn

Continuation of this injustice against these smallest human beings targeted for abortion pivots on a Jekyll and Hyde dexterity embedded now in U.S. law.

On the one hand, U.S. law as the benevolent Dr. Jekyll recognizes and treats the unborn child as a legitimate subject protected under the rule of law. The longstanding common law doctrine of the maternal reprieve — codified in 18 U.S.C. § 3596 (2000) — prohibits the execution of any woman who carries an unborn child so that her child’s own and separate right to go on living may be protected.

Accordingly, federal criminal law recognizes the validity of the right to life entitlement of a condemned woman’s unborn child. There is no quibbling here that the unborn child is not “a person in the whole sense.” Indeed, the unborn child is recognized as a full legal “person” with separate rights i.e., rights independent of her/his convicted mother on death row.

On the other hand, in 18 U.S. Code § 1841 (c) — Protection of unborn children, U.S. law as the malevolent Mr. Hyde declares that an unborn child is not a legitimate subject of protective law when “any woman” (the child’s mother to be exact) gives permission to her abortionist to conduct the intentional killing of her child. Here the Mr. Hyde side of U.S. law followed the misdirection in Roe that the unborn child is not a whole “person” with independent rights, but rather a part-person/part-something else with no rights of her/his own.

U.S. law in its Mr. Hyde persona arranged immunity from prosecution for “any woman with respect to her unborn child” or for “a person authorized by law to act on her behalf” regarding any “conduct relating to an abortion.”

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Yet it makes no sense to provide this immunity from prosecution for a mother and her abortionist in 18 U.S. Code §1841 where it is stated first that a person whose conduct intentionally kills or attempts to kill the unborn child is to be punished.

The “Protection of unborn children” law begins with:

“Whoever engages in conduct that … thereby causes the death of, or bodily injury … of a child who is in utero … is guilty of a separate offense.”

Subsequently in the same section two, exceptions are introduced to the “whoever” language — “the pregnant woman” and her abortionist are to be permitted the prohibited conduct. They are exonerated of obligation to protect the child.

The only stipulation is that the killing is done with the consent of the pregnant woman, or a person authorized by law to act on her behalf.

To kill an Unborn Child Requires Only “The Consent of the Pregnant Woman”

And so since Roe, the question of who is a human being whose life is protected is no longer decided objectively. Now who decides? Apparently, it is the one who is, in today’s crude parlance, “the owner of the uterus” wherein the child is nurtured. It is the consent of the pregnant woman that legalizes the intentional killing by abortion of her unborn child.

This flies in the face of that firm principle of justice enunciated by James Madison:
“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”

Since Roe, this founding legal principle has been revoked for women wanting to abort their children. No man is allowed to be a judge in his own cause, but every woman is allowed now to be her own judge when it comes to commissioning the killing of her unborn child.

The rule of law is brushed aside. Established legal precedents and interpretations of the Constitution are suspended. The rule of law has given way to individualistic, “private” decisions in which a mother decides that the child in her womb is unwanted and therefore is not a person entitled to be protected from intentional killing.

Each mother is awarded the ultimate legal authority to decide for herself (subjectively) what the Constitution means by person. Thumbs up — her unborn child is a person to be protected under the Constitution. Thumbs down — her unborn child is not a “person” whom she or her abortionist has any obligation under the Constitution to protect.

Her consent to have her “unwanted” child intentionally killed is all that is required to make the killing “lawful.”

The fundamental right of a new little daughter or son to go on living, to go on being nurtured and protected in her/his mother’s womb, should never have been predicated on “wantedness.” The prerequisite that the unborn child be “wanted” in order to be protected from abortion constitutes in itself an undue burden test which should never have been imposed on a defenseless unborn child.

It is time for the Supreme Court to remove this undue burden.

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