The constitutional right to kill

I ought to say something about the reversal of Roe v Wade, since the laws and practices regarding abortion have been a conflict in which I’ve been actively involved since, I suppose, 1974.

That was the year when, on the obstetrics and gynaecology firm at Roehampton Hospital, I first saw the practice at first hand, clerked in the women involved, and crossed swords with Prof Curzon, the chief obs and gynae honcho there, by asking what consideration he gave to the status of the fetus when abortion was requested. His reply was a complete fudge, to the effect that considering that issue would make decisions too complex.

If you consider possible parallels, for a moment, you might think of the administration the legal code of Hammurabi or of 19th century Mississippi, on the right of a master to kill his slave for minor misdemeanours. One might at least understand someone arguing on the absolute status of property rights, or that black slaves were subhuman and lacked souls, and therefore human rights. But if someone replied to your raising the God-given right of slave to life, you would know you’d won the argument if all your opponent had to offer was, “That would make life too complicated.” That fact was acknowledged in the 14th Amendment of 1868, which stated:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now the UK laws on abortion were not affected by Roe v Wade in 1973, David Steele’s abortion act having been passed in 1967 and immediately abused as a charter for free termination of pregnancy. As far as I know nobody has ever been prosecuted for breaching its restrictions in 55 years. More probably Steele influenced the American Supreme Court by its precedent. As a Christian teenager planning a career in medicine I was very quickly clear on the biblical position, and pre-clinical at Cambridge confirmed to me that the embryology texts (not yet doctored) were adamant that human life begins at conception, so that Christian teaching and science concurred.

Over the years I contributed to the uphill struggle to re-establish that truth against liberal ideology in my medical practice (especially in being able to empathise with the many women suffering lifelong regret after social abortions, but also in being able to see a couple of saved lives growing to productive adulthood). I wrote some articles in the medical rags, had a couple of letters published in the national press, contributed to a few parliamentary inquiries, and helped found a local pregnancy counselling service which is still running over 33 years later, which gained a good enough reputation to get referrals from the NHS gynaecology department.

None of it turned the tide, as we know – the last stats I looked at on this blog showed that numbers of abortions were as high as ever, with the majority being women over 25, not naive teenagers unable to obtain contraception. Or rape victims. Or cancer sufferers. As we predicted, and as codified in the US by Roe v Wade, abortion has become regarded as an inalienable human right.

But, as many have already said, and as the equally predictable petulant rioters have proven, the new Supreme Court decision is a game changer, and the tide is turning. Nevertheless reading the Mail today, it was entirely predictable that the whole slant would be on the “bad day for America” trope. Their headline was, also predictably given the fraudulent legal presentation of Norma McCorvey’s case back in 1973, another attempt at emotional manipulation. The headline spoke of a pick-up “plowing into a crowd of protestors,” whereas the subtly edited video actually showed a few protestors threatening a passer-by on the street and pushing the front of his car as he inched forward to get out of harm’s way. But we have been subject to “violent American Fundamentalist hicks threatening women” propaganda for so long that it’s easy not to spot the bias.

Predictably, after such a long history of obfuscation, the comments were divided – though given the standard slant of the article, it is interesting just how many of the comments applauded the Supreme Court decision. Those that did not were, universally, ignorant of what the judgement was about.

For anyone still not up to speed, all the Supreme Court ruled was that the original Roe v Wade judgement was entirely flawed in its contention that the constitution implicitly includes abortion as a universal human right. This can scarcely be denied, as even the best liberal legal minds have agreed, and the dissenting judges on the present ruling used arguments that mainly by-passed this reality: they seem to be saying, behind the verbiage, that any decent constitution ought to have abortion as a human right.

So the tired old arguments in the Mail’s comments like, “How would you feel taking a 15 year old rape victim to the doctor?” are irrelevant not only because scarcely any abortions have ever been done for rape (and research actually shows that rape victims proceeding with their pregnancy tend to do well and love their child), but because the ruling doesn’t forbid abortion at all – it just excludes it as a constitutional right, and passes the matter of specific legislation to the democratically elected State legislatures, removing the power of publicly unelected Supreme Court judges in the matter.

There is a pretty good parallel to this in the right to life, which implies a duty not to kill, enshrined in the 14th Amendment. There is no constitutional right to kill in the US constitution, any more than there is a right to abortion (as is now legally settled, whatever anti-constitutional acts or comments may follow from the present corrupt regime). There is no need whatsoever to invoke the word “murder” to prove this limitation.

Yet there are certainly a number of circumstances in which the constitution allows people deliberately to kill their fellow human. One obvious example is the equally topical 2nd Amendment, which is now also settled as meaning citizens have the right to bear arms for self-defence, and particularly defence against an oppressive State. But even putting gun-controls to one side, only the foolish deny that when directly threatened with violence, one may justly use necessary force that may kill one’s assailant.

The same is true of citizens protecting others in public places. In the UK, the original concept of the police was that they were unarmed citizens particularly authorised to make arrests, and therefore to use such necessary force as part of their their daily duties. We all know that, in practice, armed police may justifiably kill violent attackers, despite all the arguments about police brutality.

Armies may justifiably kill enemies, and it is vaguely amusing that the woke crowds at Glastonbury, no doubt giving rousing jeers at the Supreme Court decisions on both abortion and the bearing of arms, were also cheering President Zelensky Zooming on the big screen, though he has sent thousands of conscripts to their death in Donbas with orders not to surrender (or to be shot by their own commanders), and has shot negotiators who were too keen to negotiate peace.

There even seems to be some obscure principle that killing civilians in war is OK as long as their death is “collateral,” judging by the impunity with which NATO launches air-strikes and drone attacks in numerous foreign countries, designated as war-zones, or not, and then rapidly exonerates the perpetrators.

Then again, in the US, as in many other countries still the judicial death penalty is also an exception to the right to life.

Even abortion has long been permitted in order to save life (it was an exemption from the 1929 Infant Life Preservation Act), and even to save serious maternal injury:

Prior to 1967, it was already established in law, by the 1938 Bourne decision, that an abortion was legal if the doctor was “of the opinion on reasonable grounds and with adequate knowledge of the probable consequences” that continuing the pregnancy would “make the woman a physical or mental wreck”.

One might ask what our 1967 Act added to that, other than clarification? What were all those backstreet abortions for, if serious harm was already accounted for in law? The truth is that the numbers of such hard cases were grossly exaggerated in order to get the Bill through parliament. In practice the 1967 Act was abused from the start. In the vast majority of “social abortion” cases, the two countersigning doctors, required to name the serious condition that abortion would prevent, almost invariably wrote “depression,” without any reference whatsoever either to the statistical evidence or the actual psychiatric disposition of patients. Put briefly, most gynaecologists know bugger-all about depression.

What the Bill achieved was the gradual acceptance of abortion for social reasons despite their absence from the act, culminating in its overt inclusion in subsequent amendments to the law.

Nevertheless, there is a fundamental difference between exceptions to the right to life, and a constitutional right to kill. If it weren’t for the fact that our liberal world has become so committed to the principle that the ends justify the means, this Supreme Court judgement would be universally seen as the obvious redress of a bizarre legal anomaly.