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The Founding Fathers and the Right to Life

Jameson Taylor
Permission Granted

The Declaration of Independence draws a very clear line between sanity and insanity by proclaiming the existence of certain self-evident truths that all rational men should recognize: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

A self-evident truth is, by definition, evident to anyone who is sane. Persons who do not accept that all human beings are endowed with an inalienable right to life—for example, the 82 percent of Americans who think abortion should be legal—are, by this definition, insane.

The right to life is inalienable because it is not of human, but of divine origin. 1 Because man does not create himself, he cannot deprive himself of the primary goods that are inherent to human existence: life, freedom and happiness. Just as no government can deny its citizens these inalienable rights, neither can a man deprive himself of these rights. The “inalienable” right to life thus precludes abortion as well as suicide.2

A Closer Look at Roe

But what about Roe vs. Wade? Does a “penumbra,” or shadow, of the 14th Amendment guarantee a right to privacy that includes the right to an abortion?

The fact is, as Justice Byron White’s dissenting opinion in Roe vs. Wade concluded, there is “nothing in the language or history of the Constitution to support the Court’s judgement.” Indeed, just as the logical development of the Declaration’s recognition of man’s inherent liberty required federal intervention to abolish slavery, the Declaration’s acknowledgment of the inalienable right to life would seem to favor federal intervention to end abortion. 3

James Wilson’s “Lectures on Law,” given at what eventually was to become the University of Pennsylvania, clearly affirm that the right to life encompasses the unborn. Wilson was one of only six men to sign both the Declaration and the Constitution, and was a Supreme Court justice from 1789 to 1798. Recognized as “the most learned and profound legal scholar of his generation,” Wilson’s lectures were attended by President George Washington, Vice President John Adams, Secretary of State Thomas Jefferson and a “galaxy of other republican worthies.” For this reason, as constitutional scholar Walter Berns states, “Wilson, when speaking on the law, might be said to be speaking for the Founders generally.” So what do the Founders say about the right to life?

Wilson clearly answers this question: “With consistency, beautiful and undeviating, human life from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.”4

Given Wilson’s exegesis, one cannot doubt that the Founders recognized that unborn infants are owed the full protection of the law. The key question thus becomes the point at which the unborn fetus becomes an unborn child.

Wilson, in agreement with the limited medical jurisprudence of his time, assumed that life begins with the “quickening” of the infant in his mother’s womb. As taught by Aristotle, the quickening was the point at which the fetus was infused with a human, rational soul. John Bouvier’s Law Dictionary, first printed in 1839, defines the quickening as follows: “The motion of the foetus, when felt by the mother, is called quickening, and the mother is then said to be quick with child. This happens at different periods of pregnancy in different women, and in different circumstances, but most usually about the fifteenth or sixteenth week after conception….”

One of the sources of both Wilson’s and Bouvier’s opinion is William Blackstone’s widely read Commentaries on the Laws of England (1765-1769). Blackstone’s discussion of the quickening observes: “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb… this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor…”

The ancient law referred to by Blackstone is best articulated by Henry Bracton (1216-1272), the renowned “Father of the Common Law.”5 As Roe reluctantly admits, Bracton categorized the abortion of a “formed or quickened” fetus as a form of homicide, “the slaying of man by man.” Wilson seems to agree with Bracton on this issue, and thus affirmed that the inalienable right to life applies just as much to unborn, quickened human beings as it does to any other human beings. The fact that Blackstone emphatically characterizes abortion as “a very heinous” crime suggests he may sympathize with the ancient law on this matter.

Needless to say, the Founders undoubtedly recognized that unborn infants older than 15 weeks possess a constitutionally protected and inalienable right to life. Given that, according to Planned Parenthood, at least 90 percent of all abortions occur in the first trimester, this conclusion seems almost irrelevant. To begin with, however, the obvious intentions of the Founders as well as the weight of the common law compel the Congress and the courts to prohibit abortion—for any reason—in the second and third trimesters. Abortions performed during these late stages are clearly murder—and cannot be justified by a penumbra of the 14th Amendment, the mother’s health or a woman’s “right to choose.”

Pro-abortionists assert that any restrictions on access to abortion in even the second and third trimesters are bound to result in the prohibition of abortion altogether. By the same logic, however, society would have no right to forbid any crime. The reason abortionists claim that women have an absolute right to an abortion at any time is because they recognize that even the right to an abortion during the first trimester is arbitrary. Douglas Kmiec, professor of constitutional law at the University of Notre Dame, discussed this point in his 22 April 1996 statement before the House Committee on the Judiciary. Kmiec’s analysis of internal Supreme Court memoranda related to Roe vs. Wade revealed that Justice Harry A. Blackmun, author of the Roe majority opinion, even admitted to his fellow justices that “you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point…is equally arbitrary…” (emphasis added).

What are we to make of this shocking statement? Perhaps the justices did not know that an infant’s heart begins beating at five weeks or that at eight weeks brain waves can be measured or that at 12 weeks the child can and does cry and sometimes sucks his thumb.

Abortion is legal today not because the justices did not know when life begins, but because the justices—as well as the 82 percent of Americans cited earlier—do not know what liberty is. For most Americans, liberty is the subjectively defined right to do whatever you can get away with. Sandra Day O’Connor memorialized this faulty conception of freedom in her 1992 Planned Parenthood vs. Casey decision, which claimed that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

America’s Founding Fathers would have condemned such an opinion as madness. Because both life and liberty are “endowments” or “gifts” from God, the proper exercise of liberty requires that man adhere to the “laws of God and Nature’s God” in the use of his freedom. When James Wilson stated that life begins with the infant’s “quickening,” he was not making an “arbitrary” decision as to who is human and who is not. Wilson’s opinion was based upon a reasonable assessment of the best scientific, legal and philosophical opinions available at the time.

Had Wilson and the Founders had access to the discoveries of modern biology, they certainly would have agreed that life begins at conception. Medical discoveries in the years following the American Revolution increasingly encouraged American and English lawmakers to come to this conclusion. In 1803, for example, England adopted a law known as Lord Ellenborough’s Act that made it a capital offense to “cause and procure the Miscarriage of any Woman quick with child.” The law established severe penalties for aborting infants in the first trimester as well: “…if any Person or Persons…shall procure to be used or employed, any Instrument or other Means whatsoever, with Intent thereby to cause or procure the Miscarriage of any Woman not being, or not being proved to be, quick with Child at the Time of administering…that then and in every such Case the Person or Persons so offending, their Counsellors, Aiders, and Abettors, knowing of and privy to such Offence, shall be and are hereby declared to be guilty of Felony, and shall be liable to be fined, imprisoned, set in and upon the Pillory, publickly or privately whipped. …”

Bouvier, citing Theodric and John Beck’s 1835 Elements of Medical Jurisprudence, himself questions the age-old idea of the quickening, noting that “physiologists, perhaps with reason, think that the child is a living being from the moment of conception.” More to the point, Bouvier’s entry, “Foeticide,” comments that “recently, this term has been applied to designate the act by which criminal abortion is procured.” Such scholarship soon bore fruit, with Maine, in 1840, becoming the first state to ban the abortion of infants “quick or not.”6

Subsequent federal and state laws banning abortion altogether were a logical development of the Founding Fathers’ absolute reverence for the self-evident and inalienable right to life. It is no accident that the Declaration, as written by Thomas Jefferson, characterizes the right to life as the first of those three foundational rights for the sake of which government itself is instituted. Where there is no guarantee of the right to life, legitimate political authority simply does not exist. Where there is no guarantee to life for both the weak and the strong, the rights to liberty and the pursuit of happiness for all are themselves at risk. The “New Freedom” heralded by the Supreme Court and other partisans of the Sexual Revolution has thus turned into nothing less than a new enslavement. Only when we as a nation return to our faith in the Creator who gives us life and liberty will we again be truly free.

Footnotes

1  “Our liberties do not come from charters; for these are only the declaration of pre-existing rights. They do not depend on parchments or seals, but come from the king of kings and the Lord of all the earth.” John Dickinson, Founding Father and author of the Articles of Confederation. [Back]

2  “Nobody can give more power than he has himself, and he that cannot take away his own life cannot give another power over it.” English philosopher John Locke, II Treatise, iv. [Back]

3  As recognized in Holy Trinity vs. U.S. (1892), the Declaration is part of the “organic” or “fundamental” law that provides the context within which the Constitution must be interpreted.[Back]

4  “Lectures on Law,” Ch. 12, p. 597 in The Works of James Wilson. ed. Robert G. McCloskey (1967).[Back]

5  Joseph Story, Supreme Court justice from 1811-1845, states that at the time of the Founding, “the common law of England [was] the fundamental law of all the Colonies.” See also Ex Parte Grossman, 267 U.S. 87, 108.[Back]

6  Justice Rehnquist’s dissent in Roe vs. Wade mentions that by the time the 14th Amendment was adopted in 1868, 36 states and territories had enacted abortion laws. The Maine statute of 1840 is referenced in Brian Young’s “A Brief Survey of U.S. Abortion Law Before the 1973 Decision.”[Back]

Francis Schaeffer Whatever Happened to the Human Race (Episode 1) ABORTION

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Francis Schaeffer “BASIS FOR HUMAN DIGNITY” Whatever…HTTHR

Dr. Francis schaeffer – The flow of Materialism(from Part 4 of Whatever happened to human race?)

Dr. Francis Schaeffer – The Biblical flow of Truth & History (intro)

Francis Schaeffer – The Biblical Flow of History & Truth (1)

Dr. Francis Schaeffer – The Biblical Flow of Truth & History (part 2)

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I have debated with Ark Times Bloggers many times in the past on many different subjects. Abortion is probably the most often debated subject and I have noticed that many pro-life individuals are now surfacing on the Arkansas Times Blog.  Here are some examples. Arhogfan501 asserted: This is the beginning of the end for recreational abortion in Arkansas. Songbird777 noted: Babies have a right to live and not be chopped up for someone else’s convenience. The person using the username “baker” commented: Planned Parenthood (PPA) does not nor cannot provide mammograms, indeed no affiliate has the necessary license. PPA is an abortion provider and at some 900 plus killings a day rather prolific.

Here is another debate I got into recently on the Arkansas Times Blog and I go by the username “Saline Republican”:

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A blogger using the username “Steve E” asserted:

I know of the case histories of some of those, and Tiller did have a niche market. He and one other doctor took on the challenge, but it was a lucrative challenge, and not all those late term abortions were so medically needed. A million a year is pretty good whampum for plunging a knife in the skull of an infant.

Like most, I was aghast at the murder. You change laws, not kill doctors. I was no fan of abortion, but I stood at the doors of some of the clinics in Glendale, Kali to keep the entrances clear. Sometimes I had to get rough to ensure the women entering the building was not hurt.

I may not have believed in abortion, but I believed enough in the choice of the individual to fight for it, to defend it.

But I refuse to be lied to by zealots that say it isn’t murder, that there isn’t something wrong about it, and that Tiller made millions and THAT was the guiding principle.

I replied:

Steven E you need to listen to your own words and then weigh them. This is what you said:
“I lean towards giving the woman the choice, even up to birth, just do not lie to me when you say a fetus is not a baby, or a living person. There is that time, if a woman doesn’t get on the stick and take her MorningAfter pill when she is killing a baby. I don’t believe in taking the choice away from her, I just don’t want to perpetuate a lie, either. Admit that things like parital birth abortions are abominations, and the doctors that do it, do it for money, not some high calling.”
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Most liberals argue that the unborn baby is not a human deserving the protection of our laws. It seems that you are saying that even if the unborn baby “a living person” at some point during the 9 months leading up to birth but you “don’t believe in taking the choice away from her” concerning abortion and then you flip back and say “that things like partial birth abortions are abominations.”

Let me try and get you to clarify this a little bit so I don’t go away misunderstanding you.

Are advocating abortion rights over human rights? Prochoice advocate Elizabeth Williams came out and said that on 1-23-13 in her article on Salon. Maybe you agree with her? DO YOU AGREE WITH HER? I AM GOING TO DO SOMETHING THAT I HAVE DONE BEFORE AND THAT IS I AM GOING TO PUT A LONG PASSAGE FROM A PRO-CHOICE ADVOCATE:

The “life” conversation is often too thorny to even broach. Yet I know that throughout my own pregnancies, I never wavered for a moment in the belief that I was carrying a human life inside of me. I believe that’s what a fetus is: a human life. And that doesn’t make me one iota less solidly pro-choice….

Here’s the complicated reality in which we live: All life is not equal. That’s a difficult thing for liberals like me to talk about, lest we wind up looking like death-panel-loving, kill-your-grandma-and-your-precious-baby storm troopers. Yet a fetus can be a human life without having the same rights as the woman in whose body it resides. She’s the boss. Her life and what is right for her circumstances and her health should automatically trump the rights of the non-autonomous entity inside of her. Always.

When we on the pro-choice side get cagey around the life question, it makes us illogically contradictory. I have friends who have referred to their abortions in terms of “scraping out a bunch of cells” and then a few years later were exultant over the pregnancies that they unhesitatingly described in terms of “the baby” and “this kid.” I know women who have been relieved at their abortions and grieved over their miscarriages. Why can’t we agree that how they felt about their pregnancies was vastly different, but that it’s pretty silly to pretend that what was growing inside of them wasn’t the same? Fetuses aren’t selective like that. They don’t qualify as human life only if they’re intended to be born.

When we try to act like a pregnancy doesn’t involve human life, we wind up drawing stupid semantic lines in the sand: first trimester abortion vs. second trimester vs. late term, dancing around the issue trying to decide if there’s a single magic moment when a fetus becomes a person. Are you human only when you’re born? Only when you’re viable outside of the womb? Are you less of a human life when you look like a tadpole than when you can suck on your thumb?

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I am tempted to give the whole pro-choice article but I will stop and just give you the link:
http://www.salon.com/2013/01/23/so_what_if…

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I truly believe that many of the problems we have today in the USA are due to the advancement of humanism in the last few decades in our society. Ronald Reagan appointed the evangelical Dr. C. Everett Koop to the position of Surgeon General in his administration. He partnered with Dr. Francis Schaeffer in making the video below. It is very valuable information for Christians to have.  Actually I have included a video below that includes comments from him on this subject.

In the film series “WHATEVER HAPPENED TO THE HUMAN RACE?” the arguments are presented  against abortion (Episode 1),  infanticide (Episode 2),   euthenasia (Episode 3), and then there is a discussion of the Christian versus Humanist worldview concerning the issue of “the basis for human dignity” in Episode 4 and then in the last episode a close look at the truth claims of the Bible.

Many liberals actually truly do argue for abortion rights over human rights. Prochoice advocate Elizabeth Williams came out and said that on 1-23-13 in her article on Salon. We hear reasons for abortion such as poverty,and  child abuse,  but why not consider adoption? Instead, the political left will stop at nothing to push the pro-abortion agenda. Why not stop and take an honest look at when life begins for the unborn child and when she begins to feel pain?

Francis Schaeffer Whatever Happened to the Human Race (Episode 1) ABORTION

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Francis Schaeffer “BASIS FOR HUMAN DIGNITY” Whatever…HTTHR

Dr. Francis schaeffer – The flow of Materialism(from Part 4 of Whatever happened to human race?)

Dr. Francis Schaeffer – The Biblical flow of Truth & History (intro)

Francis Schaeffer – The Biblical Flow of History & Truth (1)

Dr. Francis Schaeffer – The Biblical Flow of Truth & History (part 2)

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For the past 40 years, pro-life advocates from all over the country annually march in solidarity to raise awareness for the most vulnerable in society—the unborn. Without fail, the 40th anniversary March for Life brought large crowds to the National Mall today in the hope of securing the right to life for all.

Heritage’s president-elect, Jim DeMint, understands the importance of the right to life and has always been a strong advocate for the pro-life movement.

“Over the past four decades we have seen countless victories upholding respect for human life and dignity,” he says in Heritage’s new video. “Courageous pro-life policymakers and compassionate ministries such as pregnancy care centers together made great strides to protect unborn life. They moved the hearts and minds of an entire generation.”

The rally brought thousands of people—especially many from the millennial generation. From grade schools to universities all over the country, hundreds of students took a stand on this human rights threat. Kristan Hawkins, the executive director of Students for Life in America, was handing out signs to all the youth that stated, “I AM THE PRO-LIFE GENERATION.” Students and young people held those signs proudly as they faced the bitter cold.

What does this mean for the future? As Heritage’s Sarah Torre wrote, “Today, roughly half of Americans now identify themselves as ‘pro-life,’ including many of the millennial generation who will make up the crowds at today’s march. More than 100 pro-life laws have been passed in states across the country since 2010, including parental notification, informed consent, and abortion clinic regulation legislation.”

These strides and the dedication of rising generations point to a hopeful future for America’s most vulnerable.

Great prolife poster:

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