The 'Test' in Roe v. Wade Isn't Just Unconstitutional - It's Downright Medieval


Come Dec. 1, the Supreme Court will examine Dobbs v. Jackson Women’s Health Organization to decide “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.”

Roe v. Wade’s viability test, invented by Justice Harry Blackmun back in 1973, has been nothing but trouble. Now, nearly 50 years on, it’s time for the Supreme Court to discard it.

Too clever by half, Blackmun retrofitted prenatal protection laws with a virtual version of the long-disgraced medieval practice of trial by ordeal.

To prove innocence, to avoid the death penalty, medieval justice required of the accused miraculous viability when they were ordered by the court to be thrust into deadly conditions involving fire or water, conditions that were widely expected to be unsurvivable.

Viability Test: Trial by Ordeal?

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Should an unborn child’s right to deserve to go on living under the protection of the law depend upon her ability to survive potentially lethal abnormal conditions?

No way!

Roe v. Wade conjured up just such a test. Roe imposed a virtual trial by ordeal. What Blackmun called “the unwanted child” is subjected to a thought experiment, subjected “potentially” to a viability test.

Roe alleged that states may provide legal protection for “the fetus” only if the fetus can be prejudged to be viable, i.e. able to survive an unnaturally premature and violent ejection from the safety of the mother’s womb into perilous conditions “outside the mother’s womb.”

Do you think Roe's "viability" test is unconstitutional?

But there is no constitutional basis for restricting permission to provide legal protection only to a fetus “potentially able to live outside the mother’s womb.”

Viability Test Is Unconstitutional

Roe was imposing a condition for life protection that is not appropriate to that stage of human life. There is no such condition to be found in the Constitution by any Supreme Court ever.

The original Texas law, disallowed in Roe v. Wade, was made “in pursuance of” the Constitution, “the Supreme Law of the Land.”

There is nothing in the Constitution itself that restricts right-to-life protection to only those of our posterity who are viable outside the mother’s womb. Remember that the Constitution promised to secure the same blessings of liberty to our posterity as to ourselves.

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Demanding viability from an innocent human being chosen to be removed from safety cannot render the victim’s killing lawful.

Such a demand is unconstitutional.

The Supreme Court must answer why not being able to live outside the mother’s womb should have become, since Roe, a death sentence for some 62 million American children “lawfully” aborted.

Live Human Beings in Their Mothers’ Wombs Are Viable

Blackmun redefined the meaning of “viable” with the specific purpose of excluding a fetus who is already and naturally viable at that particular stage inside the mother’s womb.

The deceit is as crafty as it is unlawful:

1. Project prematurely onto the life of an unborn child enjoying the current viable conditions in utero a virtual or imaginary transfer to inviable conditions outside the mother’s womb.

2. Then claim that the projected inviability outside the womb just at this point in time makes it all right to commission the child’s death, to cut short the life of the child flourishing normally and naturally with beautiful viability inside the womb at that very moment.

The real scandal of the Supreme Court’s support for this deceit is that it was devised by pro-abortion ideologues of the sexual revolution, not by constitutional scholars.

Abortion: A Forced Transfer from Safe Living Conditions to Nonviable Conditions

The eviction of any innocent human being at any stage of life from safe living conditions to nonviable conditions is always a crime.

Viability for human beings at any stage of life varies greatly according to the conditions in which we are living.

A human being whose life is perfectly viable in a comfortable home where there is good food, drink, shelter and all the basic necessities of life may find quickly that life becomes nonviable.

When evicted onto the street, made homeless, denied access to food, hydration and safe sleeping conditions and especially when denied access to state legal protection from those who would harm us, every one of us is inviable.

It is not the states’ prohibitions aimed at protecting the unborn child that are unconstitutional. Rather, it is the elective abortion of live human beings viable in their mothers’ wombs that is decidedly unconstitutional.

These human beings are mistreated as their mothers’ property rather than as members of our posterity already in being and already protected by the 13th Amendment from death-dealing ownership “rights.” The relationship between mother and child is one of belonging, not ownership.

Injustice of Viability Test if Applied to the Frail and Elderly

The court needs to remove the Roe precedent lest one day it is applied to a different set of human beings.

Demanding an inappropriate viability standard as a precondition for state protection from being killed means that the court could one day use this precedent to prevent states from enacting protective laws for the frail and the elderly.

This faulty precedent could be applied to justify the commissioning of a medicalized killing of a troublesome, unwanted, elderly mother who is currently and temporarily, for, say, nine months, in her carer’s home — her daughter’s residence. The court may assert that the dependent old mother’s life is not viable if we were to evict her into the snow, without shelter, food, clothing or heat.

The professional medicalized killing of the old mother could then be argued to be “lawful” on the grounds that her life would not have been viable outside her daughter’s home, outside in the snow.

Citing the Roe precedent, justices could argue that because the old mother’s life is not potentially viable outside her daughter’s home, the viability currently available inside the home can be destroyed at will by the daughter.

Does not a woman’s privacy in her home prevail over any state laws protecting the life of her “unwanted” dependent?

The Supreme Court could say that the commissioning of the mother’s killing is a private matter, her daughter’s private choice outside the state’s responsibility.

Additionally, Planned Parenthood v. Casey (1992) can be invoked to strike down any state’s protective laws for placing a so-called “undue burden” on a daughter’s right to choose.

The analogy is not perfect, but it does illustrate the most disturbing point: that the lawfulness of a premeditated killing carried out through eviction of the helpless from a safe place into a life-taking environment should never be predicated on defective reasoning.

Eviction from Life-Affirming Environment Profoundly Unjust

It is indefensible to subject an unborn innocent to a trial by ordeal to assess whether the targeted deserves state protection from being aborted. To remove any human being from a secure benign environment appropriate to her age and needs to an insecure, injurious environment is never acceptable.

It is even more indefensible to then make of her projected inability to survive the changed circumstances a “lawful” excuse and a “component” of her carer’s “liberty” to actually plan and commission arbitrary death for that vulnerable person.

Merely by imagining a change in the place of residence of the targeted victim from life-friendly to life-unsustainable cannot make killing legal.

The Founders’ “unalienable” right to life guaranteed to “ourselves and our Posterity” can never be downgraded into “a right of personal privacy” or “a right of personal choice.”

Roe must go.

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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