The Charlotte News

Wednesday, January 29, 1941



Site Ed. Note: "Bit Tangled" brings up an issue which has been simmering on the griddle in various states of doneness for the last three decades and more, abortion. Everyone seems to have an opinion on the topic and everyone seems to be generally aware that Roe v. Wade was decided January 22, 1973, thirty years ago, nearly 32 years to the day after this editorial appeared. It is a fair guess, however, given the level of "debate" which has followed in the decision's wake, including bombings and murder sure enough, the perpetrator of one of which still remains elusive, that not too many people who readily profess opinions on the topic have ever actually read the decision. So if you haven't, please take the time to do it. (You may skip sections III and IV, as they relate only to procedural issues of whether the case was properly before the Court.)

It is a decision with historical scholarship behind it not usually seen in any judicial opinion. Its principal author, Justice Harry Blackmun, delved deeply into the history of the topic during the summer recess in 1972, spending great gobs of time at the Mayo Clinic in his home state of Minnesota in so doing. He came away with an appreciation of the history of midwifery which preceded what we came to call "abortion" and he related that at length in the decision; that moral issues had never been brought into play with regard to abortion until the latter part of the nineteenth century. And only did the church and state legislatures get involved then because of the issue of high mortality and disease rates associated with the crude and unsanitary conditions surrounding the unsanctioned practice, a practice which had proceeded nevertheless informally under the directions of midwives since time immemorial, guided only occasionally and with great lenience by the common law adopted from England.

The church did not initially become involved because of some fundamentalist huckster's self-serving interpretation of a verse in the Bible of which its Hebrew authors probably never conceived as having anything to do with the modern practice of abortion, or at least in terms of the modern morality play surrounding the practice. But then the Rabbis in those days had never met a Southerner. 1

It is a fair bet, too, that most people do not realize that the decision was not only authored by an appointee of Richard Nixon to the Court, but fully five of the seven member majority--including Chief Justice Warren Burger, Justice Lewis Powell, (both appointed by Nixon), Justice William Brennan, and Justice Potter Stewart, (both appointed by Eisenhower)--were Republican appointees to the Court. Only Justice Thurgood Marshall, appointed by Johnson, and Justice William O. Douglas, appointed by Roosevelt, were Liberal Democratic appointees voting in favor of the decision. The two dissenters were Justice William Rehnquist, appointed by Nixon, and Justice Byron White, a Republican appointed by Kennedy.

So much for the oft-heard cry that "the Liberals gave us Roe v. Wade." No one but the pathetically uninformed or a deliberately lying huckster would make such a claim. If they want to disagree with the decision, fine. But don't let them parse the issue as "Liberal" or "Conservative"; it simply is not susceptible to that sort of dichotomy. Indeed, it is clear that many people who have abortions have little or no ideological affinity at all while some are Conservative, some are Liberal. And indeed, the politicians who favor the right of privacy and choice cut across politically ideological lines as well.

It is a question not of morals, religion or of political ideology but of medical science. The moral question precedes the question of the abortion. Whether the act precipitating the need for an abortion is immoral is one which has to be addressed before the act, not afterward. To do otherwise makes birth a punitive measure for adjudged preceding immorality, a rather immoral and highly judgmental state of affairs.

Medical science informs us that a fetus is not viable until sometime around the twentieth week of pregnancy (24-28 weeks in 1973); that is, it cannot sustain life outside the mother's womb during that initial period. It is not a matter of faith; it is simply the fact that no fetus has yet to be produced which will sustain life until that stage, independent of the womb. The fetus to this point of viability is therefore still a part of the mother's physical anatomy and thus within the province of her own decision-making power to have the child or not, much as it would be a person's decision whether or not to have an organ transplant. The opinion holds that the state develops a compelling interest in preserving the potential for life after the point of viability. Prior to that point, abortion is subject to regulation during the second trimester, but not subject to ban. During the first trimester of pregnancy, the decision is a private one between the mother and her physician, based on her inviolable right of privacy, subsumed under the Fourteenth Amendment's definition of liberty interests in the individual. The basis for the distinction between the first and second trimester is that 1973 data showed that mortality rates of the mother in first trimester abortions were less than in actual childbirth. Thus, weighing the competing interest of the state in protecting the health of the mother, the clear lack of viability of the fetus in this stage of pregnancy, the mother's right of privacy, and that of the state in protecting potential life, the balance favored the mother's individual choice, apart from the state, in the first trimester, as no compelling state interest arises statistically or otherwise to outweigh the right of the individual; the fetus is not viable, the mother's health is less an issue than in childbirth. 2

It is truly a very simple notion, not one bound up in complex issues intended for the didact more than the law professor.

But to tell a teenager that she must endure an unwanted pregnancy is indeed immoral. To tell a rape or incest victim the same is damnable. To compound the trauma of rape or incest by insisting that the victim deliver the child of the rapist, replete with its complement of the mother's genes spiraled about that of the rapist's, with all of the attendant perversion of the normal maternal instinct in the bargain, would be like telling any rape victim they must kiss their rapist after the act. It is an ineffably evil notion which punishes the victim.

It is a fair bet, too, that the companion case of John and Mary Doe, decided with Roe, is not often taken into account by the "pro-life" adherents. The Does, a married couple, wanted a child but Mrs. Doe had a "neural-chemical disorder" such that her physician advised her not to have a child at that time; she ceased birth control, and because of her physical condition, desired, if she became pregnant, a safe, clinical procedure for abortion.

In other words, it is not always the behind the gym cheap thrillcapade which gives rise to Roe doctrine. The Does also have a stake in the issue. Just as did Dr. Hallford, also a party to the case, who had been arrested for performing illegal abortions.

Of course, no one in their right mind is "pro-abortion", as "pro-life" people often tend to suggest. (We always wonder at the notion that so many embracing a "pro-life" position also support the death penalty--a death penalty often exacted on adults who grew from unwanted children--but that's the subject for another day.) The position stems merely from the simple notion of respect for the inviolability of each other's bodies. No one wants to have organs removed without their informed consent and medical necessity; likewise, no one wants to be forced to endure a pregnancy which they do not want. One can argue all day that the individual should have thought about that before the fact of the pregnancy, but turning childbirth into a form of punishment is hardly conducive to a better living environment or a lesson to the mother; to the contrary, it inures inevitably to the detriment of the child.

It should also be kept in mind that this concept of viability is the lynchpin of the present incarnation of Roe v. Wade. When and if medical science ever figures out how to transfer a fetus from one womb to another, perhaps, then the argument might be subject to transmogrification into another form. Until then, the recognized legal definition of life is, as it obviously ought to be, that point at which the fetus is viable such that if born, it could at least theoretically function outside the mother's womb. Medical science presently fixes that time at roughly the end of the second three months of pregnancy, certainly no earlier than nineteen weeks. Until that point, the fetus is solely dependent on the original womb for growth into a life form.

Conception, the painting on the ceiling of the Sistine Chapel, and all the rest of the artistic representations of the original breath of life are fine subjects for debate and for artists to consider and reconsider, but they are indistinct, not subject to analysis, and hence subject to wildly varied subjective interpretations--as art should be. While law permits of varying interpretation to a degree, the art of law does not encompass subjective interpretation but only reasonable, objective analysis resolved by sound argument based in prior written law as applied to objectively ascertainable present fact--or at least evidence approximating fact. Art, in the conventional sense, allows for the emotional subject to have its say. If the law proceeded in that manner, there would be chaos. One can teach the subjective moral of course and hope to avoid the mistake which precipitates the need for the abortion, but that is all one can do--at least until medical science itself evolves to a different point. Viability remains the key, not some artist's conception of life and its origins. Indeed, if the argument against abortion is applied to any form of life evolving to a human, then perhaps one should, to be on the safe side, eliminate fish from the diet. Ditto for fish roe. One should in fact perhaps stay away from the sea altogether.

The opinion in Roe v. Wade duly points out that this concept of viability is not a new one. Aristotle and Plato had it 400 years before Christ. Cited though not quoted in the opinion is the following advice of Aristotle, living in a Greek state which limited its population by law: "As to the exposure and rearing of children, let there be a law that no deformed child shall live, but that on the ground of an excess in the number of children, if the established customs of the state forbid this (for in our state population has a limit), no child is to be exposed, but when couples have children in excess, let abortion be procured before sense and life have begun; what may or may not be lawfully done in these cases depends on the question of life and sensation." (Politics, Book VII, Part XVI) Obviously, if he had meant to say abortion should not occur after conception, he would have made no qualifier to his statement and suggested instead that no abortion be allowed at all.

But before the sophists and Pharisees rise up in ignominy to the effect that regardless of Aristotle and Plato, the Bible says...

As the opinion also tells us, it was the Pythagoreans, developing 500 years before Christ, who first adopted the mystical view that life begins at conception, no doubt stemming from Pythagoras' notion of transmigration of souls. Transmigration is thought to have developed from the somewhat earlier Orphic mysteries of Greek mythology, that man rose from the ashes of the Titans whom Zeus destroyed after they ate his son Dionysus because they were upset that Zeus wanted to make Dionysus ruler of the universe. Thus, man, the myth goes, became the sum of two parts, the evil of the Titans and the divine of Dionysus. Only through transmigration could the soul be freed from the Titanic struggle. Pythagoras eliminated Zeus, Di and Ti, and stressed transmigration to higher or lower life forms depending on one's actions in the present existence. (Pythagoras was also the fellow who developed the theorem familiar to all middle schoolers studying geometry, the notion that the sum of the squares of the two sides of a right triangle is equal to the square of the hypotenuse. Pythagoreans believed that numbers represent the true nature of things. Whether the theories interrelate with transmigration we have yet to determine, but it may, especially if one is the square of the hypotenuse, which those not of virgin birth likely are.)

Nothing wrong with Pythagoras per se, but the philosophy had nothing to do with Christianity, even though Christian teachings largely paralleled Pythagorean concepts on the notion of the existence of the soul, even if the idea of transmigration into higher or lower forms of life obviously parallels the Hindu concept rather than Christianity. In fact, as Pythagoras was a demi-god to the Greek cult which followed him, the cult should undoubtedly be considered sacrilegious to Judeo-Christian teaching as violative of the precept, "Thou shalt have no gods before me".

Well, just where life begins mystically is all Greek, or at least Celtic, to us; we don't propose to remember just where or when it was and have yet to meet anyone who can tell us from their own experience just how and when it all came to be. Indeed, who ever said it actually ends? If one follows the concept of transmigration of souls, it doesn't, at least not until Nirvana or its equivalent is reached and the cycle of life ends--but who knows when or what that is?--even if it is drawn conceptually in books and paintings or noted in the mystical harp pluckings by fine artists with vivid imaginations which one studies mightily as a child and thus embraces tenaciously as a starry-night belief until proved otherwise. So, under the theory, an abortive birth would not end the ride of the soul to the next level, one in fact promised to be substantially higher as the short ride necessarily enabled the greatest of purity.

And if one does not adopt the transmigration concept, then one cannot simply eclectically pluck from out the empty void the idea of creation at conception, for one depends on the other for sustenance, both logically and spiritually, just like a horse and carriage.

If, on the other hand, each soul is thought to be fresh and separate, divinely sparked, then whether its warp and woof come to be at conception or even as late as the yank and spank or even later than that is perhaps best left to the mystery of the divine Creator, not to be fathomed by the Judgmental divinely substituting their own wisdom for that of the divinity.

Thus, we are left with Roe v. Wade, a humane, forgiving, and therefore ultimately Christian solution to a mistake.

The other side of the issue, too, of course, is that addressed in the editorial below, as also discussed in Roe v. Wade, the concept of the huckster and back-alley specialist who will inevitably thrive under a prohibitive abortion law, just as they did in states which had such laws in the early part of the century. That alternative prospect presents a rather ugly, inartful picture.

There really is no sense in it.

Only One Side

Cheap Fortified Wines Won't Mix With Violent People

Limiting the sale of fortified wines to the 26 counties with ABC stores is proposed in a bill introduced by representatives of eleven dry counties. And for once the drys will have little opposition from this quarter.

Fortified wines are wines only in the technical sense. With the exception of port and sherry, two heavy-bodied and slow-acting wines, natural wines generally run to less than fourteen per cent alcohol content, and most of them run below ten per cent. Fortified wine is wine into which raw alcohol has been dumped to alter the natural alcoholic content.

And most of the fortified wine sold in this country are the cheapest sort of green, sweet wine, with huge quantities of alcohol added. They commonly report an alcoholic content of from 20 to 34 per cent on their labels, and there is reason to suspect that even this is inaccurate. By test, these wines are absorbed into the blood and reach the brain far more rapidly than any other form of liquor.

What they really come to is a device for peddling raw alcohol, which is very cheap. And their sale is entirely uncontrolled, save for the required purchase of a wine license. Result is that the least responsible part of the population is enabled to get alcohol, and its most virulent and numbing form, too easily and far too cheaply. That population being what it is in North Carolina--inclined to violence--the situation is simply not to be tolerated.

Bad Sign

Petain's Yielding in East Suggests Turn to Nazis

The acceptance by the Pétain Government of Japan's "offer" (i.e., demand) to "mediate" the border warfare between Thailand and French Indo-Japan may be an ominous turn of events. Of it the Associated Press reports:

An authoritative source (at Vichy) said that back of Vichy's readiness to accept Japan's good offices (sic) was a German "suggestion" which sprang from a desire to exclude any possibility of United States intervention.

Germany, that is, may be moving directly to threaten the United States in the Pacific in an attempt to shut off any possibility of the Navy transferring more warships or convoying supplies to Britain and also to frighten us directly into reducing aid to Britain on account of fears for ourselves.

It has been generally assumed from the first that Thailand was the cat's paw of Japan and its attack on Indo-China. And if so, the "mediation" simply means that Japan is to get herself into position to grab the Saigon base, which would be the leaping-off point for attack on the Dutch East Indies and the great British base at Singapore. With these in her possession, Japan will be master of over half the population of the world--something Secretary Hull has plainly and correctly said we cannot observe quietly.

But the move may also be ominous in another respect. Hitler is putting terrific pressure on the Pétain government (1) to have Weygand's colonial army moved over into Tripoli to stop the British as they advance through Libya and so save Italy, (2) to "co-operate" in an attack on Gibraltar through Spain, and (3) to get activated the French navy. Pétain's yielding to the Germans in the East may mean that he is swinging steadily toward the Nazi side, that he may presently yield to all the other demands. However, the scene is too vague to be sure.

Bit Tangled

Solicitor John, However, Gets a Conviction

The trial of Professor Brandorine, alias Sam Daniels, seems to have been considerably mixed up. There wasn't much evidence that he had actually attempted abortion, for to attempt it you'd have of course to employ some method probably calculated to produce it. The Professor seems to have been too canny for that.

What there was evidence of was that the Professor had been engaged in defrauding people by pretending to promise them abortions and other things they considered desirable. Actually, the professor was convicted on the abortion charge but not even tried on the other.

Considerably mixed up, too, seems to have been Solicitor John Carpenter, who appeared to be under the impression the sordid little case was one which involved great issues of chivalry--a matter with which he likes to concern himself. The Professor, he said, was a snake, and he wanted Southern chivalry to come to the defense of the girl who, according to her own story, wanted an abortion. It was a very fine speech, but it seemed to have reference to some other case, save that the professor is of course an unpleasant and dangerous fellow to be at large.

However, all's well that ends well. The Professor undoubtedly had it coming: Mister John got a chance to deliver a favorite speech, and essential justice was undoubtedly done--which is a lot more than can be said of many cases on which the Solicitor does not seem so mixed up.

Four Changes

Three Are Obvious, Other Embodies a Hope

The four amendments to the Lease-Lend Bill which the President is said to have accepted at the conference with Congressional leaders are probably all in order.

About the first three there will be no question from any quarter, indeed. A definite time limit on the powers granted is simply common sense. And so is the requirement that the President shall report periodically to the Congress on what has been done. Both of these amendments are natural safeguards for Democracy. And consultation with the military staffs about transfer of war material ought to be a matter of course.

As for the amendment prohibiting the convoying of supplies to Britain--it is a piece of hopeful deferring of a decision which just possibly won't arise.

But if the Nazis should successfully invade Ireland or if the submarine-raider campaign should prove effective enough to Britain's lifeline to this country, then we should face the grim choice of either resorting to convoying or abandoning Britain to her fate--facing Hitler alone, with the odds dreadfully against us.

What the decision would be in that case is not very doubtful. The great danger is that there would be another interminable roar, with Wheeler, Nye, & Co. blocking action for weeks and even months while the danger grew.

However, the decision would almost inevitably be one for war--now, with an ally, rather than later, alone. And it is right and proper that it should be made only with the full knowledge and consent of the people--so important that we shall just have to hope that if the time comes even the isolationists will have got to recognize the need for speed.

W. T. Gill

A Man Brought Up In and True To the Railroad Tradition

W.T. Gill, who died yesterday, was unmistakably a railroad man. You knew it just by looking at him. And his obituary, the detailed record of his birth and career, bore out what we had surmised--that he had always been a railroad man. His first job after graduating at the University of Florida was with the Atlantic Coast Line.

There is about men who have followed railroading a certain unquestioning devotion to duty that marks them, a certain orderliness of mind and habit, yet a certain freedom, that sets them apart. They belong to a fraternity to which admission lies only by service on or in connection with trains.

High up in that fraternity was W. T. Gill. Equally at home as guest in a caboose or host in a private car, immensely popular with all who knew him, friendly, direct and unassuming, great family man and a churchman, he represented the best in personality and the truest in the railroad tradition.


1 To strive, it would appear in the context, means to fight or assault or batter, that is, at least under Anglo-Saxon law, an intentional offensive touching or attempted touching of the body, not done with the woman's consent. To hurt is also another necessary element of the proscription. Necessarily, too, the woman must be "with child" and to be with child seems to require a child with its mother, at least, it would appear, a being viable at present. Otherwise, why would it not be more clearly stated as simply "after pregnancy begins"? (An element of the offense, too, is that as a result of the striving, the woman's fruit departs from her. As that is very complex, and we must move along quickly, it need not be examined here.) So, we conclude, these words are not clearly designed to proscribe abortion, but rather were designed to deter assaults and batteries and other untoward conduct on pregnant women, primarily designed to prevent warring tribes from committing pre-emptive genocide, such that an enhancement might be had in the sentencing by the judges in the event that each of the elements of the offense were properly proved in the court. And if anyone claims to see through the words and proclaims thus to know otherwise, well, just a wee bit further on, it does say, "Thou shalt not suffer a witch to live". But since killing a witch would violate the other one on killing, period--no exceptions granted for war or execution--not to mention claiming to know good and evil, not just a proscribed act, we think it more likely means, "Thou shalt not suffer a witch to live".

2 A recent study released in August, 2002 in the Southern Medical Journal, suggesting that mortality rates among women are greater after abortive pregnancies than after childbirth, appears highly unpersuasive in dislodging the 1973 statistics suggesting the contrary, at least in early term abortions. The new study, examining only aid dependent women in California, (as well as an earlier study in Finland), looks beyond the actual immediate physical effects of childbirth versus abortion, and seeks to explore over an eight year span psychological effects of abortion versus childbirth through examining relative statistics on accidents, death by undefined "natural causes", and suicides after either an abortion or childbirth. But these factors are subject to being self-fulfilling prophecies, given the increased likelihood of psychological factors predisposing to the abortion or more likely to be following from it. That is, social stigma and loss of self-esteem potentially attached to the abortion and unlikely affective support of a male in the aftermath of an abortion, for instance, as opposed to the reverse of these factors normally expected after most natural childbirth, likely account for much if not most of the disparity. The rest would likely result from probable pre-existing factors, that a greater percentage of women seeking the abortion would be expected to be risk takers and thus more likely to be involved in accidents generally than those giving childbirth, less likely to take care of personal health, likely to be depressed by the fact of the unwanted pregnancy itself, apart from the abortion procedure per se, especially if that pregnancy resulted from disclosed or undisclosed rape or incest, and other such factors which have little if anything to do with the abortion, none of which factors the study had the ability to isolate. The disparities, in short, are as easily explained by the likelihood that women suffering from the pre-existing maladies or other precipitate conditions leading to these premature deaths are more likely, when pregnant, because of these very maladies or conditions, to seek abortions than to go through childbirth.

For all its good intentions, the study is therefore woefully defective and virtually meaningless, at least with respect to increasing the state's interest in whether or not a woman has an abortion or, as its narrative suggests it was likely intended, to convince women not to undergo the procedure on the premise that it increases the likelihood of untoward results down the road.

And if used to this end, the study itself could have untoward effects, as women, especially young women, who nevertheless opt to have the abortion, might develop almost superstitious ideas surrounding the abortion which could in turn lead to depression, anxiety, feelings of social alienation, etc. Perhaps the best use of such data is to suggest the need for greater institutional psychological support mechanisms for women, especially aid dependent young women, after obtaining abortions. Amelioration, it would seem, would best derive from teaching for the future, not scare tactics in the present which probably do more harm than good, whether the unwanted pregnancy goes forward or not.


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