The Challenge of ‘Stare Decisis’

John B. Shea
March 12, 2003
Reproduced with Permission
Catholic Insight

When a court makes a decision, it establishes a precedent which is used by subsequent courts in their deliberations. In so doing, they are applying the legal doctrine of ‘stare decisis’, which is one of the most important doctrines in Western law. ‘Stare Decisis’ means “to stand by decided cases, to uphold precedence, to maintain former adjudications,” and is applied extensively in the law courts today.1

Nevertheless, many legal scholars agree that this doctrine subverts the law, because it has come to take on a life of its own, with all precedents presumed to be well founded, unbiased legal decisions.2 One of the most harmful and outrageous examples of this subversion was the precedent established by the U.S. Supreme Court in Roe v.Wade in 1973. That Court declared that “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” This declaration was at the zenith of arrogance and the nadir of ignorance. The definition of when life begins is not within the purview of philosophy or theology or of the law. The authority, competence, and responsibility for this definition belongs to the science of human embryology. The Court had the moral and legal duty to comprehend the meaning of the words it used and to be cognizant of the relevant scientific facts. It failed in regard to both aspects of this duty. It should have been aware that Wilhelm His, the acknowledged founder of the science of human embryology, had already established in 1880, that a human life begins at fertilization. This fact is accepted by all standard scientific text books of human embryology to this day.3, 4, 5

Research on the oral contraceptive pill and also on human embryos began in the 1950s. Oral contraceptive pills were first prescribed in the 1960s. In 1973 a moratorium on embryonic research was declared in the U.S. Pressure immediately began to allow this research, and at the same time a variety of ‘scientific’ myths were promulgated in an attempt to justify it. The embryo was dismissed as a “bunch of cells”, a “potential human being”, or a “pre-embryo” up until the time of implantation in the wall of the uterus. 6 The “pre embryo” fiction was also promoted by the British Warnock Committee Report (1984)7, and the 1994 National Institutes of Health (NIH) Human Embryo Research Report,8 both of which put a limit of 14 days on human embryo research but admitted that this limit was arbitrary and could and must be changed if necessary. At the same time, pregnancy was redefined as beginning, not at fertilization, which is the scientific fact, but 5 – 7 days later at implantation.

All of these scientific falsehoods are still in use in an attempt morally to justify abortion, human embryo research, embryonic stem cell research, and the use of the ‘morning-after’ pill, which is frequently abortifacient. It is of interest to note that in all of the Supreme Court cases since 1973, and at all Congressional hearings on abortion, partial-birth abortion, in vitro fertilization, human fetal research, human embryo research, cloning, and embryonic stem cell research, no human embryologist has been called as a witness and no reference to Human Embryology has ever been made. Furthermore, among the NIH Human Embryo Research Advisory Panel, the National Bioethics Advisory Commission, and President Bush’s Council on Bioethics, no human embryologist was appointed as a member, or called as a witness.9 This indicates a bias among the decision makers in our society. It is obvious that legislation based on these myths can be used to claim that no embryo is ever harmed or killed by the aforementioned procedures and research.

But that is not all. It has now been established scientifically that “… fertilization is the procession of events that begins when a spermatozoon makes contact with a secondary oocyte, or its investments, and ends with the intermingling of maternal and paternal chromosomes at metaphase of the first mitotic division of the zygote.”10 The fact that fertilization takes time to be completed is taken advantage of in many research projects today. The chromosomes of the sperm and the oocyte fuse only at the end of the fertilization process, which is called ‘syngamy’. After a sperm penetrates the ovum, the sperm head and the nucleus of the oocyte (both of which contain the nuclear DNA), each become surrounded by a membrane, and are now called ‘pronuclei’. For several hours after the process of fertilization has begun, the male and female pronuclei are individually visible with traditional light microscopy, and are available for research. Indeed, modern research on pronuclei is extensive. Pronuclei are used, for example in the production of transgenic animals. They can be switched from one early embryo to another to investigate genomic impurity, or to examine the relative contributions of the cytoplasm and the genome to the observable structure, function, or behavior of a living organism. These early hours after the start of fertilization provide a window of opportunity for research on the genome. This is being used to discover treatments for auto-immune disease, juvenile diabetes, and multiple sclerosis, Alzheimer’s disease, osteoporosis, the provision of non-human organs for transplantation into humans, and as a research tool in the pharmaceutical industry.

It is important to realize that the claim that research performed before syngamy would not involve research on an embryo is false. This claim is of the same genre as the ‘pre-embryo’ fiction already referred to. Research involving pronuclei is immoral because this research is also performed on the human embryo which frequently results in the death of the embryo or in animal/chimera formation (crossing a human with an animal).

Professor Angelo Serra S.J. states that “every human being begins its own life at a starting point that is commonly called the ‘moment of conception’, which coincides with the starting point of that process which is scientifically termed ‘formation of the zygote’ at the fusion of the gametes (sperm and ovum) or ‘syngamy’.” 11 Actually 12 – 14 hours will have already passed between the moment of conception (penetration of the ovum by the sperm) and this process of syngamy. As previously noted, a new human being comes into existence immediately after the sperm has come into contact with the oocyte. At this point, a symphony of coordinated and integrated processes occurs, which is under the control of the new organism itself. These processes include, orderly constitution of new genetic information, replication of the new genome and multiplication of cells. This new organism is, as Father Serra points out, “a real individual, beginning its own life cycle, a human subject who is ‘autonomously’ built up according to a strictly defined plan, though proceeding through stages that are qualitatively ever more complex.” 12 To quote Prof. John Heng, of Kings College, University of Western Ontario, “The moral worth of human beings cannot be judged in the way that inanimate things which do not direct their own ends, are judged. Things have a value according to their usefulness to external agents. Human beings have value as ends in themselves.”13

As another baneful example of Stare Decisis, in Roe v. Wade, the Supreme Court also denied an unborn child the right to protection under the U.S. Constitution, which states that “The State shall not deprive any person of life, liberty, or property, without due process of the law or deny any person within its jurisdiction, the equal protection of the law.” By inference, the Court denied that an unborn child is a person. At the same time it admitted that if the personhood of the unborn child is established, the case for abortion collapses. Personhood, as seen by the law however, was only a matter of legal definition. “This word ‘person’ … is not an individual or single person, but the status, condition or character borne by physical persons … The law of persons is the law of status or conditions.”14 According to the law, no human being has intrinsic human rights. Those rights are granted only by the lawmakers themselves.

The question of personhood is a philosophical one, on which the law has taken a dogmatic position. The Court was now assuming the role of a philosopher. In fact, personhood begins when the human being begins, which is at conception, either by sexual or asexual means. This legal definition of personhood is regnant throughout the courts of the west today. The Court admits that “…the sovereignty of the State does not reside in the persons who fulfill the different departments of its government, but in the People, from whom the government emanated; and they may change it at their discretion. Sovereignty then, in this country, abides in the constituency, and not in the agent; and this remark is true, both in reference to the federal and state government.”15 The Court fails to acknowledge, however, that the authority of the state ultimately comes, as Christ told Pilate, from above, from God. Thus the Supreme Court is not truly supreme. It is merely the Appellate Court of last resort. It is of interest to note that the Court’s concept of the sovereignty of the State as residing in the People is analogous to the notion of modernist “liberation” theologians that the only source of spiritual revelation and religious authority is the democratic consensus of the people, and not the teaching of Christ, and of His Church.

From a theological prospective, the moral worth of human beings, comes from their relationship to a loving God, in whose image they have been created. Therefore the moral right of the embryo, an innocent human being, to be cared for and not to be harmed in any way, must be protected by law. If one examines the laws being passed by many governments throughout the world today, one finds that these rights are often ignored and trampled on. If these rights are to be protected, the law must be written in such a way that the scientific terms used and the procedures referred to are correctly defined. The law must not be allowed to become a game of subtle obfuscation and deceit, in which procedures harmful, or even fatal to the embryo, are not prohibited, even if the law superficially purports to do so. This is doubly dangerous because, as we have demonstrated, such laws establish a precedent which may be very difficult to abolish. Furthermore, inaccurate, incomplete or ambiguous definitions also may render it impossible for persons to give valid informed consent to those ill-defined procedures. This may result in subsequent litigation.

Judging by the laws being proposed and passed in many of the legislatures in the western world, the legislators appear to be guilty of ignorance, deliberate disregard, or misrepresentation of the scientific evidence that defines the moment when a new individual member of the human species, a new human being, comes into existence. It is quite clear that many research workers, commercial organizations involved in fertilization and embryo research, and pharmaceutical companies, have a conflict of interest in this matter. Members of the bioethics community itself, who regularly pass judgment on the ethical aspects of research, often are not free of conflict of interest and perhaps bias. It is a fact that many bioethicists are hired by commercial concerns to ‘advise’ them in regard to the ethical status of proposed research projects engaged in by those companies.

In the light of the above, it surely behooves Catholic moral theologians and philosophers, bioethicists, scientists, physicians and legislators, to be alert and well informed. The rapid advance of science and technology, though undoubtedly producing remarkable benefits, is also producing biological and pharmaceutical products and procedures which, depending on the purpose for which they are used, and the way in which they are developed can be either a blessing or a moral evil. Since it is our duty as Catholics to be a ‘light unto the nations’, it is also necessary for us to be appropriately informed in regard to our faith, our philosophical tradition and the relevant aspects of science.

The sixteenth century, by which time Columbus had discovered America, the Renaissance had brought new word of our cultural heritage of Greece and Rome, the Ottoman Empire was assaulting Europe, the Protestant reformation was underway and man had become obsessed with his own importance, was very much like our times. St. Ignatius saw the need to found a society of holy men who understood the reality of the struggle between Christ and Lucifer for human souls. He also saw the need for priests who were, above all, loyal to Christ and his Vicar, and who also were well versed in Philosophy, Science, Theology and the Humanities. These first Jesuits were versatile enough to cope with the radical cultural change which occurred in their day. The last years of the twentieth century ushered in what was called by Pope John Paul 11, the “culture of death.” Scientific researchers, physicians, legislators and public policy makers, at both the national and international level, are now frequently committed to moral values at variance with, and even hostile to, the teaching of the Catholic Church and the natural law. Legislation is increasingly being drafted in language carefully chosen to appear benign and truly moral, but which is, in reality, subtly deceptive and destructive. Therefore the Church today needs a clergy and a laity educated, as were the first Jesuits, to a level of sophistication adequate to the task of giving a clear and adequate witness to Christ.

This is the challenge of ‘Stare Decisis’.


1  Henry Campbell Black, A Law Dictionary, second ed. (New York: West Pub, 1910). An appeal court’s panel is “bound by decisions of prior panels, unless an en blanc decision, Supreme Court decision or subsequent legislation undermines those decisions.” United States v. Washington. 872 F. 2d 874, 880 (9th. Cir. 1989). [Back]

2  Jon Roland, “How stare decisis Subverts the Law.” 2000, June 10. [Back]

3  William J. Larsen, Human Embryology, (New York: Churchill Livingstone, 1997) 1. [Back]

4  Ronan O’Rahilly and Fabiola Muller, Human Embryology and Teratology (New York: Wiley-Liss, 1994).[Back]

5  Bruce Carlson, Human Embryology and Developmental Biology ( St. Louis, MO: Mosby, 1994).[Back]

6  Richard M. McCormick, S.J., 1979 Report and Conclusions: HEW Support Research Involving Human Invitro Fertilization and Embryo Transfer (Washington, D.C. United States Department of Health, Education and Welfare) 101. [Back]

7  Dame Mary Warnock, Report of the Committee Inquiry into Human Fertilization and Embryology ( London: Her Majesty’s Stationary Office, 1984) 27 – 63. [Back]

8  National Institutes of Health, Report of the Human Embryo Research Panel, Sept. 27, 1994 Bethesda, MD: (National Institutes of Health, Division of Science Policy Analysis and Development). [Back]

9  C.Ward Kischer, PhD., “The corruption of the science of Human Embryology.” C.Ward Kischer. PhD. ABAC Quarterly (Fall, 2002). [Back]

10  O’Rahilly and Muller, Human Embryology and Teratology, 3rd. Ed. 31 [Back]

11  Angelo Serra, S.J., Bulletin of the National Council of Victoria, Vol. 21. “When did I Begin ? … a scientific view.” [Back]

12  ibid. [Back]

13  John Heng., Bioethics Update Vol. 2 Issue 2, Fall/Winter 2002, Canadian Catholic Bioethics Institute. [Back]

14  American Law and Procedure, Vol. 13, 137, 1910 [Back]

15  Spooner v. McConnell, 22 F 939@943. [Back]