It is a little known fact that there was laughter in the United States Supreme Court 40 years ago during the Roe v. Wade hearings. Thought to be the youngest person ever to win a Supreme Court case, then 26 year old Sarah Weddington, the attorney for “Roe”, briefly lost her composure in a choked bout of chuckles before the court. She laughed alone that day, however, and every single citizen in our nation ought to hear what was said, particularly in light of this month’s Alabama Supreme Court ruling that “unborn children are persons with rights that should be protected by law.”
When Justice Harry A. Blackmun asked whether Mrs. Weddington felt there is any “inconsistency” in Court decisions against the “death penalty with respect to convicted murderers and rapists at one end of lifespan, and [her] position in this case at the other end of lifespan,” she replied that it has “never been established that the fetus is a person or that it’s entitled to the Fourteenth Amendment rights or the protection of the constitution.” It was clear to the court, even back then, that the case depended on the “fetus” having “constitutional rights.”
Justice Potter Stewart pressed further, “Well, if it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?” Mrs. Weddington replied, “I would have a very difficult case.” And then she laughed nervously. Justice Stewart, not laughing at all, continued that this is akin to ruling that if a “mother thought that it bothered her health having the child around, she could have it killed.” Mrs. Weddington said, “That’s correct,” and declined any further response.
Our laws still, chillingly, reflect this inconsistency. On the one hand, we have the almost decade long 2004 Unborn Victims of Violence Act which federally recognizes a “child in utero” as a legal “victim” if he or she is injured or killed by crimes of violence, and laws such as the one decided in Alabama this month that recognize “unborn children are persons with rights that should be protected by law.” On the other hand, we have abortion for all nine months of pregnancy and impunity for the ones that kill those children, children who are not even guaranteed the protections given to convicted murderers and rapists in some states. It was not funny 40 years ago, and it is still no laughing matter. These are children being killed. Aren’t children people too?
Have you ever listened to the Roe vs. Wade arguments?
Click the play button, it will start at ~20:00 minutes into Mrs. Weddington’s arguments (the attorney for Roe). The clip is only ~4 minutes, but be sure to listen from 23:30 – 24:30. The whole recording is found here. It is a piece of history, a tragic one. This is how it was argued that a mother has a right to kill her own child 40 years ago.
Justice Harry A. Blackmun: But tell me why you didn’t discuss the Hippocratic Oath.
Ms Weddington: Okay.
I guess it was– okay, in part, because the Hippocratic Oath, we discuss basically the constitutional protection we felt the woman to have.
The Hippocratic Oath does not pertain to that.
Second, we discuss the fact that the state had not established a compelling state interest.
The Hippocratic Oath would not really pertain to that.
And then, we discuss the vagueness jurisdiction.
It seem to us that that– that the fact that the medical profession, at one time, had adopted the Hippocratic Oath does not weight upon the fundamental constitutional rights involved.
It is a guide for physicians, but the outstanding organizations of the medical profession have, in fact, adopted a position that says the doctor and the patient should be able to make the decision for themselves in this kind of situation.
Justice Harry A. Blackmun: Of course, it’s the only definitive statement of ethics in the medical profession.
I take it, from what you just said, that you’re– you didn’t even footnote it because it’s old.
That’s about really what you’re saying.
Ms Weddington: Well, I guess you– it is old, and not that it’s out of date, but it seemed to us that it was not pertinent to the argument we were making.
Justice Harry A. Blackmun: Let me ask another question.
Last June 29, this Court decided the capital punishment cases.
Ms Weddington: Yes, sir.
Justice Harry A. Blackmun: Do you feel that there is any inconsistency in the Court’s decision in those cases outlying the death penalty with respect to convicted murderers and rapists at one end of lifespan, and your position in this case at the other end of lifespan?
Ms Weddington: I think had there been established that the fetus was a person under the Fourteenth Amendment or under constitutional protection then there might be a differentiation.
In this case, there has never been established that the fetus is a person or that it’s entitled to the Fourteenth Amendment rights or the protection of the constitution.
It would be inconsistent to decide that, after birth, various classifications of persons would be subject to the death penalty or not but, here, we have a person, the woman, entitled to fundamental constitutional rights as opposed to the fetus prior to birth where there is no establishment of any kind of federal constitutional rights.
Justice Harry A. Blackmun: Well, do I get from this then that your case depends primarily on the proposition that the fetus has no constitutional rights?
Ms Weddington: It depends on saying that the woman has a fundament constitutional right and that the state has not proved any compelling interest for regulation in the area.
Even if the Court, at some point, determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another.
Justice Byron R. White: And that’s what’s involved in this case, weighing one life against another?
Ms Weddington: No, Your Honor.
I said that would be what would be involved if the facts were different and the state could prove that there was a person for the constitutional right.
Justice Potter Stewart: Well, if it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?
Ms Weddington: I would have a very difficult case. [Laughter]
Justice Potter Stewart: You certainly would because you’d have the same kind of thing you’d have to say that this would be the equivalent to after the child was born.
Ms Weddington: That’s right.
Justice Potter Stewart: If the mother thought that it bothered her health having the child around, she could have it killed.
Isn’t that correct?
Ms Weddington: That’s correct.
Chief Justice Warren E. Burger: Could Texas constitutionally– did you want to respond further to Justice Stewart?
Did you want to respond further to him?
Ms Weddington: No, Your Honor.