Dobbs v. Jackson Women’s Health Organization, No.19-1392 on the docket of the United States Supreme Court

John Remington Graham

[Editor’s note: During my 35 years offering courses logic, critical thinking and scientific reasoning, my students and I engaged in endless debates about abortion, where I was simply astounded at how much more they knew about birth control and the varied circumstances under which a woman might find it inadvisable to bring a new member into her family. My own opinion is that Roe v. Wade has been among the wisest decisions ever rendered by the United States Supreme Court, where it predicates that the first “right to life” comes into existence at the onset of viability, which is the ability of a fetus to live outside the intrauterine environment (which turns out to be a function of the development of the lungs rather than of the heart or brain) at the end of the 2nd trimester of pregnancy. Prior to that state, the fetus has the standing of a special form of property. but thereafter becomes a person with the social, legal, and moral rights that attend that status. So the key question is that of personhood, where any abortion thereafter other than to save the life or the health of the woman qualifies as murder. The right of a woman to choose whether or not to carry a fetus to term appears to me to be hers alone, in the absence of which a woman would be consigned to reproductive slavery. It follows that, in my opinion, the pro-choice position, which does not force anyone to carry an unwanted fetus to term or to undergo an abortion when they want to carry to term, represents the only moral, respectful, democratic stance on this extremely controversial issue. Because my dear friend and retired professor of law, John Remington Graham, has given this matter much thought, I invited him to share his reflections.] 

Jim,  — We have shared views on the touchy subject of abortion. You have asked me to express my observations on yesterday’s argument before United States Supreme Court on the latest challenge to Roe v. Wade, 410 U. S. 113 (1970).  I attach my résumé since my retirement from the practice of law. As you know I was born and raised Catholic, but have quit the church out of disgust over Jorge Bergoglio, alias Pope Francis, who has played politics against the natural sciences, as if Galileo had never lived.  Even so, my mind is still shaped by Catholic education and discipline.  My work at university was in defense of Thomas Aquinas and René Descartes against the logical positivism of the Vienna Circle and Oxford-Cambridge language analysis.  I accept the encyclical Evangelium Vitae on the sanctity of life.  But I think the argument before the United States Supreme Court yesterday fell short, because neither the justices nor the lawyers understood key legal realities which should be understood by all.  If pro-choice people accepted that the unborn are alive, human, and helpless, and pro-life people understood that some things, like divorce, consumption of alcohol, and abortion may be moderately regulated, but cannot be altogether prohibited, we could reach a practical compromise for the good of society.  Last year, I made the following comments in correspondence with a leaned women who taught American constitutional law for many years, and I share my thoughts with you and your readers:

          «Unwanted pregnancy has plagued our species for ages.  The common law, i. e., the general law of the mother country to the extent received on our continent, as it prevailed across the United States when George Washington was President and in place for hundreds of years before  the American Revolution, comprehensively dealt with the rights of the unborn and prosecution for abortion.  The common law acknowledged an unborn child as a legal person with civil rights in private litigation.  From and after conception an unborn child was a measuring life in the rule against perpetuities, could inherit property, and was entitled to the protection of a guardian and an injunction, and, as acknowledged by the Supreme Court of Canada in the seminal case of Montreal Tramways v. Leveillé, [1933] 4 D. L. R. 337, an unborn child can recover for prenatal injuries caused by a tort against the mother.  But the common law was different for public litigation. Under the common law, there was an immunity against criminal prosecution of abortion during the first half of pregnancy (then determined by quickening, today measured by twenty weeks after the beginning of the last menstrual period), and no prosecution of felony homicide unless the child was born alive.  The principles of the common law on the rights of the unborn in private litigation, and limitations on criminal prosecution for abortion are laid down in the first book of Blackstone’s Commentaries on the Laws of England, Christian edition 1765, pages 129-130, and the fourth book of the same work at page 198.  Cf. Roe v.  Wade, 410 U. S. at 132-136, including notes 20-28.  I have long wondered why the common law ordained such a radical difference between private and public litigation.  Why did the common law liberally concede the legal personhood of an unborn child in matters of property and inheritance, yet firmly prohibit criminal prosecution during the first half of pregnancy? I did not understand for many years, but finally uncovered the answer in the “treatise on the law” by St. Thomas Aquinas (S. T., Ia IIae, q. 93, art. 3, ad 2-3): there it is said that, where temporal law violates natural law, we have a species of violence, but that there are some things which temporal law should not touch, not as approving anything, but as being unable to regulate effectively and justly . . . Our experience with Prohibition did not make as temperate, but promoted organized crime.

          «Nothing can be accomplished by criminalizing medically competent termination of pregnancy in the early months of gestation but exclusion the medical profession, thereby making the procedure unsafe. Hence, the common law imposed an immunity against prosecution of abortion in the first half of pregnancy, even though an unborn child was a legal person in private litigation from the moment of conception.   And this immunity was so well entrenched as an unenumerated right in the United States at the framing of the Federal Bill of Rights in the First Congress that it was surely protected by the original meaning of the 9th Amendment and related provisions of the United States Constitution.  We have important rights which are not positive rights like education and voting, or privileges properly so called, but only immunities against intrusion, including the invaluable protections of the 4th Amendment.  Privacy itself is not a positive right, or privilege, but an immunity against intrusion.  In any event, I am now prepared to concede . . . a constitutional immunity against criminal prosecution for abortion in the first half of pregnancy is an authentic constitutional right in the United States, albeit not a positive right or privilege . . . And, consequently, I concede that any statute which criminalizes abortion from and after the moment of conception is unconstitutional on its face. Starting with Lord Ellenborough’s Act, 43 George III, Chapter 58 (1803), it became the practice of governments in Europe and North America to criminalize abortion as a felony from and after the moment of conception. And as we might expect, practical problems and human tragedies have resulted, and the situation was made worse. If it be allowed that elective abortion is a grave moral error as we have been taught and many believe, criminalization from the moment of fertilization is for good reason prohibited in the United States under the original meaning of our Constitution . . . .» — Jack Graham

Postscript

Jim, – This is good enough, however imperfect my pen.  Roe v. Wade, 410 U. S. 113 (1973) sorely needs to be modified, but should not be overruled.  The oral argument in Dobbs v. Jackson, No. 19-1392, was civilized and worth hearing.  It focused on where to draw the line between the rights of the unborn and the rights of the mother.  If we listen to legal history, we should accept  half way between conception and birth which was where the common law drew the line.  I think modern statutes  should say the initial immunity from prosecution extends to twenty weeks atter the beginning of the last menstrual period, that prosecution for abortion thereafter should be a gross misdemeanor unless excused by three physicians safeguarding the life of the mother, with no felony homicide until after the child is born alive, which would approximate the judgment of legal history for hundreds of years up to the time of George Washington.  Today we are crippled with polarization, which prevents compromise.  Any suitable compromise would be imperfect, but is the only feasible course.  And if we do not follow the common law, what else can we use for guidance on where to draw the line in a court of law?  – J. R. G.

john remington graham

counselor  at law

BA. in philosophy 1963, LL. B. 1966, University of Minnesota; admitted to the Bar of the Minnesota Supreme Court, 1967; admitted to the Bar of the United States Supreme Court, 1971; Public Defender, United States District Court for Minnesota, 1969-1973; Founding professor, teaching common law pleading, judicial writs and remedies, American constitutional law, admiralty, copyrights, legal writing, conflict of laws, legal history, and modern civil procedure, and serving as chairman of the admissions committee, Hamline University School of Law, 1972-1980; Advisor on questions concerning constitutional law and equitable remedies to the Minnesota State Board of Bar Examiners, 1974-1978; Special Counsel for the City of Brainerd, 1974-1980; Crow Wing County Public Defender, 1981-1984; Crow Wing County Attorney, 1991-1995; Occasional lecturer in comparative British, American, and Canadian constitutional law at Laval University, 1989-1991, 1997, and 2000, and in public international law, 2003; and Advisor on British constitutional law and history to the court-appointed Amicus Curiae for Quebec before the Supreme Court of Canada in Reference on certain Questions concerning the Secession of Quebec from Canada, [1998] 2 S. C. R. 217.

Note: On April 1, 2020, I retired as a member of the bar of the Minnesota Supreme Court after more than fifty eventful years of practice.  I retain my good standing and active rights as a member of the bar of the United States Supreme Court under Theard v. United States, 354 U. S. 278 at 281 (1957). — John Remington Graham

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