Heckler - On Abortion
In the Penumbra of a Penumbra
On April 22, 1996, a young woman by the name of Giana Jessen testified before the Constitution Subcommittee of the House Judiciary Committee. “I am happy to be alive. I almost died. Every day I thank God for life. I do not consider myself a by-product of conception, a clump of tissue, or any other of the titles given to a child in the womb. I do not consider any person conceived to be any of those things.”1
Giana is one of many in our society whose life was almost lost to abortion. On the morning of April 6, 1977, Giana’s 17 year-old mother had been administered the drugs that precipitate the abortion process. As is often the practice, the chemical was administered ahead of time since several hours are required before the unborn child will respond and subsequently abort. The abortionist was not scheduled to arrive in the clinic until 9 am, but to the surprise, and perhaps horror, of everyone present that morning, Giana’s mother gave birth at 6 am, before the abortionist had arrived, and before the life of the child could be snuffed out by the abortionist. 2
Today, Giana, who is plagued with cerebral palsy as a result of the saline used in the abortion process, advocates against the barbarity of the practice in our society. 3 She is by all measures a very special person, one who defied a death-wish christened upon her by her mother, and fully sanctioned by law, and society by extension.
Her very existence raises many questions. But the most troubling question is: how can life occur from a procedure justified on the premise that life does not exist in the ‘clump of tissue’ that is being aborted? If the object of the abortion is devoid of life, as many claim, how is it that a living, breathing child, an ‘aborted’ baby, laid helplessly crying in an abortion clinic in 1977? The answer, in short, is that Jessen’s existence proves beyond doubt that a fetus is full of life. Further, to arrive at the conclusion that a child within her mother’s womb does not possess life requires deductive fantasia and the willing suspension of disbelief.
The historical pathway leading us to such an inconceivable place was long and winding, and society knew it had arrived on January 22, 1973 when the Supreme Court of the
An understanding of philosophical ideas can often be found in the most unusual places. Oddly enough, one such place is the effulgence of a lamp, or, for that matter, any source of luminosity that brightens the world around us. There, under illuminant rays, clarity of sight occurs. The text of a book or subtle nuance of art is perceived with ease. In contrast, when the light ceases, the absence of luminosity gives way to darkness, wherein nothing is perceptible. Then, there is a middle space, a place that is neither brightly lit, nor utterly dark. Here, things are visible, but only partially so. Objects are seen, but details are imperceptible. We can see that a book is there, but cannot read its title. We can see that art is there, but cannot determine its subject. This space that exists away from the direct luminosity of light, yet not engulfed in darkness, where things are seen in the dimness, but not fully known, is called the penumbra. 5
Such areas of diminished visibility exist not only rooms, halls, and streets, away from lamps and streetlights, but also in the interpretation of the law. When a law lacks clarity on the existence of rights, and the interpreting judiciary is consequently unable to render judgment based on the text of the law alone, she may conclude a right is implied by other rights which are clearly stated in the text of the law. These unstated rights are said to exist in the penumbra of those rights that are textually explicit. 6
For example, let’s say that the text of a hypothetical constitutional amendment guarantees the right of a person to sing. The state of
Justice Harry Blackman wrote in the opinion of the court in Roe v. Wade, “Appellant would discover this right [of privacy] in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.” 7 In other words, Justice Blackman concluded that a woman’s right to an abortion was in the penumbra of the right to privacy, which is in the penumbra of the right to personal liberty as explicitly provided for in the Fourteenth Amendment. That’s right. Justice Blackman ruled that the right to abort a baby is in the penumbra of a penumbra, and that this right, which exists in the penumbra of a penumbra, supersedes an unborn baby’s right to life.
No reasonable person would argue the right to life after birth, but there is no language that explicitly protects an unborn child’s right to life. Many argue that an unborn child does not possess life at all, while an equal or greater number argue that life is, without dispute, present in the womb. Simply put, the question of whether or not the unborn have life has no consensus, and thus remains unanswered by society. Even Justice Blackman acknowledges this inconclusiveness in Roe v. Wade, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” 8 This statement could arguably be the most significant ‘cop out’ in the history of mankind.
Justice Blackman, rather than doing his job and addressing the question of life in the womb, chose to ignore it altogether. If a room full of scientists were asked if life exists in the womb, the opinion would likely be split. Some would argue that life begins after the child is born, others would argue that life begins at conception, and others would likely argue that life begins at some arbitrary point during the pregnancy such as the beginning of the second trimester. But one thing is certain, none of the scientists in our hypothetical situation would unanimously agree. It tells us that there is a possibility life does not exist in the womb, bur it also tells us that there is a possibility that life does exist in the womb. The possibility alone that life exists in the womb substantiates its protection, even in the absence of consensus. What will the Court have to say if “those trained in the respective disciplines of medicine, philosophy, and theology” 9 should one day arrive at the conclusion that the womb does in fact hold life? How will we explain the deaths of millions of babies to future generations?
In fact, this conclusion is beginning to become a reality, as medical professionals leave the abortion industry behind, and tell of harrowing eyewitness accounts of life and death in the abortion clinics. A former Planned Parenthood Director gave one such testimony, "The doctors would remove the fetus while performing hysterotomies and lay it on the table, where it would squirm until it died… They all had perfect forms and shapes. I couldn't take it. No nurse could." 10
Lifeless clumps of tissue do not squirm, nor do they die, and these facts no philosopher can deny.
John Locke said it best in 1690, “But though this be a state of liberty, yet it is not a state of license; though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it.” 11
Today, criminal law precludes capital punishment for convicted murderers if any doubt of guilt is present, but the same consideration is not extended to the unborn in the absence of certainty that life exists in the womb. Deference to life is provided for murderers if their guilt is in doubt, while deference to death is provided to unborn children because their life is in doubt. We err on the side of caution for guilty murderers, but not for the innocent unborn. At a bare minimum, is the unborn child’s right to life not ‘in the penumbra’ of the right to life guaranteed by the Constitution? No matter how it’s spun, the logic that led to the final ruling in Row v. Wade can only be described with one word: bizarre.
Sources
1. Giana Jessen testimony, abortionfacts.com, at: http://www.abortionfacts.com/survivors/giannajessen.asp
2. Ibid.
3. Ibid.
4. Supreme Court of the
5. Dictionary.com, entry: penumbra, at: http://dictionary.reference.com/browse/penumbra?o=100074
6. Dictionary.com, under Legal Dictionary, entry: penumbra, at: http://dictionary.reference.com/browse/penumbra?o=100074
7. Supreme Court of the
8. Ibid.
9. Ibid.
10. Francke, Linda Bird, The Ambivalence of Abortion, (
11. Locke, John, The Second Treatise on Government – Chapter II, from the Kirkpatrick Signature Series Reader, Bellvue Press, (p. 111)
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