Weekend Special Ep. 1. Let's Talk About Abortion
abortion, law, founding era, life, arguments, womb, rights, pro abortion, blacks, argue, robinson, fact, untenable, commentaries, manslaughter, wrote, murder, woman, apply, modern
Abortion gets to be the preferred topic of conversation. I think it's re rehashed and recycled from time to time. So we're going to address this from a slightly different perspective, coming at from a historical perspective. And also as kind of a continuation of what we've already established with natural rights doctrine. And our understanding of the Constitution. What I will not be doing is attempting to address the morality of abortion, instead, we will try to deal with it specifically just as it exists in law, natural rights theory, and also just a little bit of philosophy in here too.
So, it's one of the kind of proper, more popular techniques that's being swirled about here presently, as the arguments that extend back to the Founding era. Now, that's actually not a bad way to try and analyze and understand a modern problem. In fact, the entire premise of the 1787 project, and a bulk of this podcast is the validity of applying a genuine historical understanding to modern events. But of course, in order to do that, you have to have a factually accurate source of that history to be applied. Hence, the my very, very clear, personal animus against historical revisionism in general, which is, ironically, very similar to my formal education, which was an English and the propensity to interpret literature not for the things that it meant, but for the things that it meant to us, the student, which I think is a not only a simplistic, and kind of weak way to approach intellectual development, but also disingenuous because the Constitution, for example, says a certain thing, and it does not matter what you think it says. There are many cases where it is written so overtly that does not require interpretation. Hence, the 1787 Project.
But specific to abortion is a good idea. We're going to go back in time, just a little bit here, to the colonial period, and the Founding era. So initially within the British colonies, and this aspect confuses some people, not every law was actually recorded. They had the English common law, which was understood to apply universally, universally to all British colonies. It's very similar to the ius Gentium, of the Roman Empire, only that it applied domestically, but also internationally to different colonies. And the way that it approached abortion was actually very reflective of what are generally called the “heartbeat bills” of the modern day. They used the term “quickened,” which was to mean that the baby could be felt to move, and obviously due to the limitations of technology at the time, that was then understood to be when life began. So if you were to abort the fetus prior to quickening, it was labeled as a misdemeanor. And if it was aborted, after quickening, it was treated as a felony.
Now, there were many instances, of course, as in all laws, which we know either through our own personal experiences or through reading the two tier legal system and justice system that exists the present day for citizens versus those of political connections. There were several instances of selective enforcement. Just because something was law does not necessarily mean that it was enforced. Which it's really no different than getting pulled over and let off with a warning, that kind of thing.
Now, what changed though, is as science developed, came to be understood instead, that life actually began at inception. This was the universally-fully recognize truth for a very long period of time actually really up until the 1960s, when the great constitutional charade began.
So in Britain changed their laws in the late 1860s. And the States changed their laws around the same time period. And all they really did was they removed the consequence of the misdemeanor for pre quickening and any abortion was treated as a felony. So if wer’re looking back for historical examples, which it honestly it's a little puzzling to me, how pro abortion activists who say, “Well, look, look how they did things at the colonial time, and that the founding era where the states had all these different, different laws?” And course, the answer is well, yes. And that's exactly what would occur, should the leaked opinion of the court that would overturn Roe v Wade, would become a reality.
So they're, they're citing an instance. That would be the result of this decision. And there's, they're citing that instance as being preferable, but then they're rallying against it, the modern day. So they're saying, look, the way it existed before was great. But somehow, making it that way, again, is awful. And it's an abuse of human rights and women's rights and reproductive care and health care rights and human rights, and all these imaginary things that are that are created, whenever you base your life philosophy on something as subjective and arbitrary as positive freedoms.
So how about the constitutionality of abortion? I mean, what are the most powerful legal influencers on the Founding and the founders obviously, the consequence was a an English judge by the name of William Blackstone, which he wrote a very, very famous judicial treatise called commentaries in the laws of England, which I reference a lot of, you know, kind of air quotes, “really old stuff” for a lot of my podcast, and especially throughout the 1787 Project. But Judge Blackstone, actually, he writes in such a way that it's very, very attainable to the modern reader. I found myself actually rather enjoying what he had to say. In fact, one of my many things I would like to like to digest on a more extensive level is are his commentaries. And Blackstone, I do believe was the second most often cited source for many of the Founding era documents authored by the Founders. So he's an established authority. Let's just, let's just summarize it that way.
Now, in his commentaries, Judge Blackstone writes, and I quote, “for if a woman is quick with child, and by a potion, or otherwise kills in her womb, or if anyone beat her, whereby the child dies in her body, and she is delivered of a dead child. 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.” So here, abortion is still acknowledged, as, well, as an act of illegality.
James Wilson was a signer of the Declaration and one of the original Justices of the Supreme Court. And of course, he was also a teacher. So he taught his students that with “consistency, beautiful and undeviating. Human life from its commitment to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to steer in the womb. By the law life is protected not only from immediate destruction, but from every degree of actual violence, in some cases, from every degree of danger.” So we can see kind of these older references that they refer to the stirring or the quickening and movement of the baby, which for at this point was still kind of the way that they identified life beginning. Clearly the same statements would apply then, at an earlier date when we apply them with the new understanding of when life begins, which was Inception now for actually most of the 19th century.
And James Madison founding father, he appointed St. George Tucker onto the courts. And George Tucker also taught at the College of William and Mary. And he actually wrote a very nice treatise that was kind of a rehashing of Judge Blackstone, but with added commentaries and whatnot. Certainly a thrilling read, I have no doubt. But he also wrote, that [it] is a great misdemeanor to kill a child, and it's mother's womb.
Laws in the American states that criminalized abortion, really, from the beginning of the formation of the states. Virginia outlawed any use of using abortives to unlawfully destroy the child within the womb, and actually classified it as murder. And a lot of these laws within these different states that either put restrictions or bans on abortion were authored by the same man who were responsible for the founding documents.
And we can still, we can see this manifested to the current day. Which is actually kind of a really confusing hypocrisy of law, or at least the conflict of law. So if you are a drunk driver, or let's just say you were careless, and you hit a pregnant woman with your car, and she lost the baby, that's manslaughter. If she and the baby are both killed, that is then two counts of manslaughter. If you murder a pregnant woman, it results in two charges of homicide. If you attempt to murder a woman, and it only successfully killed the infant within her, you are charged with one count of homicide. Any type of medical malpractice, whether it's a new pharmaceutical drug, or a medical procedure, that the mother is not warned about that then leads to the death of her unborn baby, those doctors or that company or whatnot are held legally responsible and malpractice procedures are then implemented.
So throughout law, it's recognized that the child is a child, none of these there's no laws that I'm aware of anyway, that specify well, you can, you can beat a pregnant woman, as long as she's in the first trimester, and then if she loses that baby, then you wouldn't get tried for manslaughter. That would be very dystopian. So when you argue that abortion should be protected, legally, there are laws, you're really confronted with two possibilities, either that's utterly irreconcilable with natural law theory, natural rights, common law, and our actual existing legal structure. Or you would have to change all existent laws to reflect that society does not recognize unborn children as human beings. So that if you caused the miscarriage of a woman, you wouldn't be held responsible. Otherwise, having no restrictions, and whatnot on abortion is really irreconcilable with the current governing legal structure.
So let's examine abortion against the kind of broader backdrop of Founding rights, the Founding doctrine of natural rights, which we've alluded to just just shortly here earlier. So the first element of natural rights theory is the preservation of life. Every human being has the right to live. That's where “murder” comes from, “Homicide” and the like. Now, this is considered supreme to every other right. So that is also where the very good case and the correct case in my opinion can be made that abortion that is meant to save the life the mother is utterly unlike any other case in that you through natural rights theory you cannot Ask someone to die for somebody else.
Now, the way that would that would work out, let's put it as a hypothetical. A woman is undergoing chemotherapy for cancer treatments, and she becomes pregnant, she maintains her therapies, and then the pregnancy is terminated as a result. That is not does not run afoul of natural rights theory, that does not make it any less tragic or awful that she was in that situation, but just looking to things clinically, then that is the obvious exception to how that works. And that that actually agrees perfectly with natural rights philosophy, which we're gonna get to a couple of instances where the very untenable pro-abortion arguments that are on the national stage at current prove themselves to be untenable.
Now, it should be specified, however, that the preservation of life means being alive, that does not mean that if a baby is interpreted as a burden, or a struggle, or some type of confounding factor to life goals, that does not constitute “preservation of life.” And we, we see that kind of kind of abuse, or attempted abuse and distortion of governing philosophy. There were different instances where abortion was illegal, except in the health of a mother, many doctors who helped with this process obviously, would simply say, “Oh, well, being pregnant, having a child was stressing [the] mother out too much. And so therefore, she qualifies for a medical abortion, to safeguard her, her health.” And so that, again, is a difficulty that you come into when you're using subjective and arbitrary, foundational understandings of things.
So abortion really could only be categorized—And I actually it's kind of really rather not use the phrase, but it is what it is—that would be considered a positive freedom in that it is something that the government then allows for you to do it. It is not something that you have a right to do. And, of course, that would also mean then that the government has is in a position where it can regulate that “freedom,” air quotes with my fingers, “freedom,” and any and all ways that it's all fit. But in order for that to remain coherent, it would have to alter all existent laws that also affect unborn babies, which I addressed earlier.
So the modern debate over abortion really stems from a gross act of judicial activism. And it's interesting in that if Roe v Wade were to be overturned, it was simply returned things to the states the way they had been in the way that presumably, many pro-abortion activists prefer. The idea that overturning Roe v Wade, would outlaw abortion everywhere is a is actually a very absurd thing to say. And nobody who says that is someone who should be taken seriously.
What it would do actually, if you were a, a stalwart pro-abortion individual, it would create an environment where you can move to a state or use the resources of a state that were radically pro-abortion. And then if you're someone who is opposed to such things, and you can move to a state that is stricter on their abortion regulations. There's a word for this. It's kind of the whole reason that we formed with individual states.
So the truly kind of, I guess, ironic part of this, is that and this, I think, reflects on kind of the overall distorted view of government that that reigns supreme today. It's interpreted and understood that if the federal government does not use its supreme force, to make something legal in all states, that that is the same as denying, denying that to the citizens. Now which of course is ridiculous, and like many arguments is utterly untenable. In fact, if one were to really argue for kind of a Federal type ban on abortion, that would be the more arguable position, it would be simple to be essentially arguing for a federal law against murder of children. It is for this reason that there's so many kind of parallels drawn between abortion and slavery as well.
So, going a little further in time now, abortion was really popularized and expanded with it within the Progressive era. And the reason for that was for eugenics, human selective breeding, and one of the elements necessary for that is for the people that were considered “inferior.” Which just as kind of an obvious thing would, all blacks were considered inferior at this time by the eugenicist—they needed to be controlled, their population to be controlled. And part of the reason for that was because they were still considered in many respects to be animalistic, barbaric, unable to control their sexual urges, really the old Democrat southern arguments that justified slavery, they just blew the dust off, kind of shook off their civil war defeat, and decided to apply it from a more scientific perspective.
Now, what's truly ironic is that we see the same ideas presented today. So Dr. Yashica Robinson, who recently testified in front of a Congressional committee on abortion rights, and she's a board member of physicians for reproductive health, and the director of the Alabama women's Wellness Center. So she's a big wig, she's very important you see.
And she testified on May 18 . And she defined a lack of abortion as a as racist and as a tenant of white supremacy. So Dr. Robinson, who I don't know what her medical credentials are, you know, “C's get degrees” was always the kind of the wink thing we talked about back when I was unfortunately, still being formally educated. But it is apparent that she hasn't taken the time to acquaint herself with the historical background for the thing that she is an unyielding advocate for, because it [abortion] was implemented as a tool of white supremacy, and premised completely on racist beliefs of black inferiority. So her historical illiteracy, has her contending for the opposite of truth here. So as a black woman herself, on arguing for abortion, she is in fact, carrying the torch for the kind of early 20th century anti-black racist KKK meeting attending Margaret Sanger. And the fact that she's a black woman pushing this is also not unusual. You can go back to the words of WEB DuBois, who worked alongside Margaret Sanger for the air quotes “Negro project,” which was a structured design and plan to use pastures and other community leaders to encourage blacks to not only allow the construction of abortion facilities, but to actively use them as well. Course, you know, WEB DuBois himself was an elitist, he considered 90% of blacks to be, well, essentially the same status as many southern plantation owners had less than a century before. They were inferior, that they could not control their urges that they were without character. All those all the good things that make him so heralded in the modern discourse when they talk about civil rights leaders, and the NAACP published articles and their crisis magazine to time arguing for more abortion centers, especially in Harlem, and actually much like Dr. Yashica Robinson, argued that the fact that there weren't, quote unquote, “enough” abortion centers, was in fact racist, and it was a direct assault against the black community to give birth apparently.
So the whole purpose of abortion was to expand programs meant to limit the population of non-Anglo Saxons. So Dr. Robinson could really literally not be more wrong on her position, and she is incorrect on historical matter, and it's evidenced throughout the writings and the pertinent records of the time. It's, it's literally a click away on the ol’ Google machine. It's not a hidden secret. But I do write about that extensively in the 1787 project, though I have not yet revised, edited and published that one but it is forthcoming.
Now, the she was not the only star witness, of course, that came out during the, this House Judiciary Committee hearing. Representative Mike Johnson, he's a Republican from Louisiana. He was questioning Amy, I don't know how to pronounce her last name. It's A-r-r-a-m-b-i-d-e. He was asking her what the difference was between killing a two year old child and a child that's eight inches up the birth canal. So I'm gonna go ahead and read His words directly. So he said, and I quote, “If it is not lawful, and morally acceptable to take the life of a 10 year old child, and a two year old child, same thing, that would be murder, we would all agree that's wrong. what is the principal distinction? Between the human being that is two years old? Or nine months old? Or one week old? Or an hour old than one that is eight inches further up the birth canal in the uterus? Why? Or what is the difference? Why is it okay in the latter cases [to perform abortions], but not in the former cases?”
Now, Mrs. I'm gonna say Arrambide, she has a She is a graduate of law school, and she has a PhD in philosophy. And she was utterly unable to answer this question. Instead, she just repeated the same kind of general platitude, kind of knee jerk response, “I think a woman should be allowed to do with her body” whatever she you know, that kind of thing. And the reason that she couldn't respond to that, effectively, it's because there is no effective response. Because there is no difference between a baby that is fresh out of the womb, and by the standards, immune to abortion, and the one still in the womb, there really is no difference, different DNA, different toes, fingers, heart everything is different.
So, the natural rights theory, of course, does extend it to the fact that women should be able to make decisions about their own body. But that same theory also protects the unborn from death and for the purpose of life, that is why it is “life, liberty, and then the pursuit of happiness,” because the two are a requisite for the final one.
So examining some of these arguments now and withholding any kind of moral or religious arguments the attempts to frame abortion as a Constitutional right or as some type of kind of inherent right or a woman's right or all these other euphemisms used, really do not hold any position that is defensible. There are many arguments that have been repeated and then destroyed, dismantled, that don't really bear repeating.
But we can call back on history. See what the thing, what the purpose was of abortion, just see how the colonial period how they viewed it and used it, English common law throughout the founding era, what the founders felt about abortion. And really, at that, at that point, one could still present moral arguments or other arguments, but what they cannot do is argue for a position that assumes constitutionality, coherency of the law, or any type of recognition with existing patterns of kind of legal doctrine.