Judge Andrew Napolitano
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Last week marked the 39th anniversary of Roe vs. Wade, the U.S. Supreme Court decision that permitted abortions. Prior to that case, abortion was regulated by each state, and most of them prohibited it unless two physicians could certify that the baby growing in the mother's womb would likely result in the death of the mother. Even the states that permitted abortions when the pregnancy was caused by rape or incest, an extremely rare occurrence, did not permit it after the sixth month of pregnancy.

Roe vs. Wade changed all that. It permits abortions in all 50 states during the first three months of pregnancy for any reason or for no reason. It permits abortions during the second three months of pregnancy for the health of the mother. "Health of the mother" can mean mental health; thus, most states have taken the liberal position that if a continued pregnancy would make the mom sad or challenge her psychologically, or if she has second thoughts about the pregnancy, the baby may be aborted.

Roe vs. Wade also permits the states to prohibit or to allow abortions during the last three months of pregnancy. Most states prohibit all abortions during the final three months, as this is the period of viability; when the baby can live -- assisted, of course -- outside the mother's womb. New Jersey, my home state, is the exception, as it permits abortions up to the moment of birth.

In the past 39 years, American physicians have performed more than 50 million abortions. Abortion is the most frequent medical procedure performed in the U.S. The linchpin to Roe vs. Wade is the Court's rationale that because the decision to undergo an abortion ordinarily occurs between patient and physician, and because that interaction ordinarily takes place in private, the right to privacy insulates abortion from the reach of the State. Roe vs. Wade itself does not define the right to an abortion, but it does unambiguously declare that the baby in the womb is not a person, and that the right to privacy protects the mother's decision to kill the baby.

Did you catch that? The Supreme Court declared that the baby in the womb is not a person. When it made that declaration, it rejected dozens of decisions of other courts, in America and in Great Britain, holding that the baby in the womb is a person. This is reminiscent of the Supreme Court's infamous Dred Scott decision in 1857 in which it ruled that blacks were not persons. In both cases, it cited no precedent, it gave no rational basis, and in Roe vs. Wade, it merely said that because philosophers, physicians and lawyers could not agree on whether babies in wombs are persons, it would declare them not to be persons.

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Judge Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year.