The Shift in Law That Has Made Abortion Laws a Nightmare

Jan 17, 2024 by David Fowler

The Shift in Law That Has Made Abortion Laws a Nightmare
The reversal of Roe v. Wade last summer has spawned lawsuits by Tennessee women and physicians concerned about the state’s new laws criminalizing abortion and bills providing exceptions to that law. The lawsuits and bills have provided a mirror by which I can now see the terrible effect of a fundamental change in how law is thought of today compared to a century ago, something I was not even taught in law school. Here is why the situation reminds me of the Proverb: Do not remove the ancient landmark which your fathers have set.”
A significant factor in the conflict and angst over the state’s law limiting the availability of abortion and imposing criminal sanctions on physicians for abortions not clearly within the language of certain enumerated exceptions is a change from a law system driven by common law to one resting almost exclusively on statutory or enacted law.
It is not necessary for you to have a precise understanding of what common law is; after all, what is taught to lawyers today is not what common law meant throughout history and even until the early 1900s in our country. What you need to know is that common law was called “unwritten law” to distinguish it from the “written law” found in enacted statutes by legislative bodies.
But because common law was not “written” as in a statute, the “legal system” grounded in it required legal counselors and jurists to reflect on historical developments in law and society and exercise wisdom and judgment to discern what the law should be in a particular situation.
The history of the transition from a common law legal system to one that is predominately driven by enacted statutes is fascinating. In Tennessee the dispute over the sufficiency of common law legal system vis-à-vis the desire for legal system based more on a written legal code was not settled until 1858, sixty-two years after statehood!
But the effect has been a shift from legal reasoning to semantics, meaning a shift from having to think about the nature of law, general principles or axioms of right and wrong, and how they apply in a particular situation to an examination of the words in a statute and what they mean in a strict sense.
For example, the common law recognized that human beings were “persons” and vice versa, and over centuries, common law worked out those situations in which wisdom and sound judgment would treat an unborn human being as a person under the law.  Sadly, most of the pro-life lawyers I know who lead the pro-life cause stubbornly refuse to consider what the common law said for centuries about the unborn being persons in the law and use it to protect the unborn even though the Supreme Court routinely looks to common law on other issues of constitutional interpretation.
Anyway, as a result of this shift to semantical reasoning, even some well-intentioned doctors are petrified of being prosecuted for performing an abortion out of fear that the words used in the statutes for exceptions to prosecution are either too imprecise or too few to protect his or her judgment that the abortion in question fits one of the existing exceptions.
So, state Senator Richard Briggs, a physician from Knoxville, says he wants to file legislation that will expand the list of diagnosed medical conditions for which prosecution for abortion is precluded. I would imagine that statutory list could get long over time if new conditions that truly threaten the life of the baby and the mother are discovered.
That is what happens when dictionaries are substituted as the basis for law over exercising sound judgment and wisdom to ascertain how a general common law principle that human life should be protected from harm at all stages of development is to apply in a particular circumstance.
Written rules and dictionary definitions seem to have become a convenient substitute for a nation of people who lack a strong, clear, and objective ethical framework and the sound judgment needed to implement it.
Sadly, having so long ago removed the ancient boundary of common law on which our legal system was framed for a ‘letter of the law’ legal system, we may not currently have the competencies needed to restore it. Educating people on what they never knew and why it is now valuable to learn it will take time.

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