Tiernan Kane Speaks on Roe v. Wade

On Monday February 15, the St. Thomas More Society hosted Tiernan Kane, a student at Harvard Law School, to speak on the topic of abortion law in the United States. His talk focused on the legal reasoning used in the landmark Roe v. Wade decision of the United States Supreme Court to legalize abortion in 1973. Kane set the tone for the evening by asking a simple question that elicited a rather sobering answer: “How many Supreme Court cases are so ingrained in the cultural mind that they can even be named?” Three was the consensus: Brown v. Board of Education, Plessy v. Ferguson and Dred Scott v. Sandford, all of which were either major moral victories or moral defeats for our country. Before diving into the legal arguments put forth in Roe v. Wade, Kane emphasized the fact that the Roe decision did not come out of a vacuum, and that abortion was in fact a hotly debated issue before the Roe decision in 1973 due to the national growth of the movement to liberalize abortion, which began as early as 1967 with its legalization in California and Colorado.

From there, he proceeded to outline the legal argument put forth by Justice Harry Blackmun in Roe v. Wade. The first premise in his argument is that there is a right to abortion that is based on the privacy rights of the mother. Although Blackmun acknowledges that nowhere is this right to privacy to be found in the Constitution, he argues, that discernible through the Bill of Rights, is a certain “realm of liberty” that the government is not supposed to traverse without a “compelling state interest”. At this point, Kane couldn’t help but note how remarkable it is that Blackmun’s first move is not to consider the fetus’s right to life, but the mother’s right to privacy.

The second premise in his argument is that the protection of prenatal life does not constitute a compelling state interest. This is due to the fact that the 14th Amendment defines a person as someone “born or naturalized in the United States.” Under the 14th Amendment, then, a person needs to be born in order to be a person. Kane interjected here that it is not clear to him how that is reasonable, and thus that one of the pivotal interpretive moves Blackmun makes in his argument is to judge the word “person” to be an artificial legal term and not one that refers to a “natural kind” – a term philosophers use for “a grouping that reflects the structure of the natural world rather than the interests and actions of human beings”. Moreover, he added, given that it truly is the case that a fetus is a human being, it is imperative that the Court recognizes its protection as a “compelling state interest.”

At this point in his argument, Blackmun famously says, “We need not resolve the difficult question of when life begins.” He says that, “As judges, it’s beyond our competence to know when life begins,” before launching into a long, encyclopedic discussion of everything from Stoic views of conception, to Aristotelian science, to the problems of embryological data that suggest conception is a process, and more. All of this shows (presumably) that there is no human consensus as to when life begins, and thus that judges are right to avoid the question altogether.

With this premise in place, Blackmun does go on to say that the government can limit a mother’s right to an abortion (provided she is not at risk health-wise) to protect “potential human life”, as long as it judges life to begin at some point after “viability” – which he pegs (with no acknowledgment of its arbitrariness) at 24 to 27 weeks, or the third trimester. A final bit of famous language from this decision comes in when Blackmun asserts that this interest in protecting potential human life “grows in substantiality” until (during the third trimester) it finally becomes “compelling”.

Kane did not spend as much time refuting the arguments put forth in the decision as he did in laying them out. In doing this, however, it became quite clear how faulty these arguments prove to be, and it was perhaps not even necessary to pick them apart.  In concluding his talk, Kane mentioned that many eminent legal thinkers supportive of abortion have even acknowledged that Roe v. Wade is simply a case of bad legal reasoning.