Roe v. Wade
My old legal ethics (Yeah, I know, attorneys are taught ethics?) professor, Ron Rotunda, has a fascinating opinion piece in the Chicago Tribune recalling a time in 1994 when he was in a small group that heard the late Justice Harry Blackmun defend his decision in Roe v. Wade:
Blackmun said Justice Byron White wrote a bitter dissent, referring to “raw judicial power.” With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.” When White announced his dissent, “White was emotional.” Blackmun asked rhetorically: “Why was White so strong against my view? His upbringing in modest circumstances? Or his wife’s influence?”
It did not occur to Blackmun that White based his dissent on the court’s precedent. Blackmun said, “We tried to decide the case on a constitutional basis, not a moral basis.” Blackmun did not give that presumption to White.
Another Blackmun disclosure: “To date, I’ve gotten almost 70,000 letters on Roe. I have read almost all of them.” He said many letters are “abusive” and he was amazed that many people objected to his decision. “Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised.”
The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”
Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case. In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.
Blackmun explicitly rejected the argument that “one has an unlimited right to do with one’s body as one pleases.” Instead, in Roe, Blackmun cited, with approval, Buck v. Bell, a 1927 case that approved of compulsory sterilization. Continue reading
For the Lord is sweet, his mercy endureth for ever, and his truth to generation and generation.
Psalm 99: 5
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
Justice Byron White, from his dissent in Roe v. Wade
The prosecution is ready to rest in the murder trial of the abortionist Kermit Gosnell. Yesterday was the last day of testimony for the prosecution, and they ended with a tale that plumbs the absolute bottom of the sad chronicle of Man’s inhumanity to Man:
On the last day of testimony before the prosecution rests in the murder trial of abortionist Kermit Gosnell, a former worker at Gosnell’s clinic testified that she saw one late-term baby who survived an abortion “swimming” in a toilet and “trying to get out.”
Kareema Cross, a “medical assistant” who worked at Gosnell’s Women’s Medical Society clinic for four-and-a-half years, testified in a Philadelphia court today, telling of the horrors of babies who survived abortions only to have their necks snipped with scissors.
Forty years ago today the Supreme Court rendered its Roe v. Wade decision. Those who believe in the sanctity of human life and long to see America embrace a culture in which innocent life is honored and protected continue to look for a day when humanity is again deemed valuable, where we cherish even those who would be born in “less than ideal circumstances.” Children are our most precious resource and remain the greatest symbol of hope God has given us. This is just one reason why the annual March for Life has been such a powerful aspect of the pro-life movement. This year’s event is Friday, January 25th, and once again a multitude of Americans will gather in Washington, D.C. to show their support for precious little ones.
Our Founding Fathers declared: “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.” However, since 1973, millions of children have been denied the basic right upon which all the others hinge: the right to life.
Lately, President Obama has taken to boldly highlighting children in his speeches. Using kids as the backdrop for his gun control speech, the President claimed his commitment to young ones. “If there’s even one life that can be saved, then we’ve got an obligation to try,” he said. He then outlined why gutting our Second Amendment is the means by which he believes we accomplish this. Every law-abiding citizen’s heart is broken when children are the target of men hell-bent on committing acts of evil, and we agree that the safety and protection of innocent life is paramount. Continue reading
Hattip to Matt Archbold at Creative Minority Report. Nope the above ad is not a parody, but was actually put out by The Center for Reproductive Rights.
Doctor Alveda King, niece of Martin Luther King, Jr., mother of six and a strong pro-life advocate, provides all the commentary this ad needs:
Abortion is genocide. It’s killing populations. It’s killing generations and certainly the population that is most impacted by abortion in America is the black community. So I feel that as a civil rights leader I have responsibility to proclaim that black Americans are being exterminated by the genocidal acts of abortion. Continue reading
Thanks to the efforts of Ron Paul and other pro-life libertarians, I’ve found that it is no longer automatically assumed that libertarians are pro-abortion. This is as it should be.
Indeed, I tremble for my country when I reflect that God is just: that his justice cannot sleep forever.
Thomas Jefferson, 1785
I have always agreed with this sentiment of President Abraham Lincoln:
“Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”
If the Civil War was the punishment visited upon the nation for slavery, what plague will visit us for celebrating the “right” to abortion?
As bad as yesterday’s Supreme Court decision was, it doesn’t hold a candle to one handed down twenty years ago today. On this date in 1992, the Court decided the case of Casey v. Planned Parenthood. People might be disappointed with John Roberts right now, but the fury at Justices O’Connor and Kennedy, and to a lesser extent Souter, after they voted to uphold Roe v. Wade dwarfs that.
Ed Whelan links to post by Michael Stokes Paulsen in which he calls Casey the worst Supreme Court decision of all-time. Part one is here, and part two is here. I wholeheartedly agree. I also ranked Casey as the worst when compiling my list of the worst decisions of all-time. Sure, there have been several atrocious decisions handed down by the Court, and Paulsen highlights some of the worst defenders in part one. But what makes Casey so egregious is the combination of the sheer awfulness of the decision from a constitutional perspective, as well as the devastating real world impacts it had.
Paulsen details all that is wrong with the decision. The plurality opinion relied on stare decisis to reach its conclusion, treating the doctrine as though it were sacrosanct. If you listened to the plurality you would come to the conclusion that Court had never struck down a decision it considered to be wrongly decided. What’s more, the plurality opinion is simply a mess of contorted logic, rightfully mocked by Scalia in his brilliant dissent. Most damning, it ensured the continued legal protection of abortion, dooming millions more unborn children to their premature death.
I’ll leave you to read both articles in their entirety.
Roe v. Wade may have made abortion legal in all 50 states, but Casey entrenched that decision. Worse still, it did so in a way that made the Roe majority opinion seem like a masterwork of originalist logic by comparison.
“What we want, and all we want, is to have with us the men who think slavery wrong. But those who say they hate slavery, and are opposed to it, but yet act with the Democratic party — where are they? Let us apply a few tests. You say that you think slavery is wrong, but you denounce all attempts to restrain it. Is there anything else that you think wrong, that you are not willing to deal with as a wrong? Why are you so careful, so tender of this one wrong and no other? You will not let us do a single thing as if it was wrong; there is no place where you will allow it to be even called wrong! We must not call it wrong in the Free States, because it is not there, and we must not call it wrong in the Slave States because it is there; we must not call it wrong in politics because that is bringing morality into politics, and we must not call it wrong in the pulpit because that is bringing politics into religion; we must not bring it into the Tract Society or the other societies, because those are such unsuitable places, and there is no single place, according to you, where this wrong thing can properly be called wrong!”
Abraham Lincoln, speech at New Haven Connecticut, March 6, 1860
Thirty-eight years ago today, the US Supreme Court in Roe v. Wade struck down the laws against abortion throughout the country on the grounds that they were unconstitutional. The decision was, as Justice White noted in his dissent, a “raw exercise in judicial power”, as there was no basis at all in the Constitution to support the ruling. Since that day approximately a million, on average, unborn children have been put to death each year, and a large and powerful faction has championed these deaths as right and proper and opposed all efforts to ban or restrict abortion.
It is fitting that as we observe this dreadful anniversary, the nation is shocked by the revelations at the murder mill run by abortionist Kermit Gosnell for over three decades. As Paul noted in his post on Gosnell here last week the grand jury described his activities in gruesome detail and noted that he was able to do this only with the complicity of the local authorities:
We discovered that Pennsylvania’s Department of Health has deliberately chosen not to enforce laws that should afford patients at abortion clinics the same safeguards and assurances of quality health care as patients of other medical service providers. Even nail salons in Pennsylvania are monitored more closely for client safety.
The State Legislature has charged the Department of Health (DOH) with responsibility for writing and enforcing regulations to protect health and safety in abortion clinics as well as in hospitals and other health care facilities. Yet a significant difference exists between how DOH monitors abortion clinics and how it monitors facilities where other medical procedures are performed.
Indeed, the department has shown an utter disregard both for the safety of women who seek treatment at abortion clinics and for the health of fetuses after they have become viable. State health officials have also shown a disregard for the laws the department is supposed to enforce. Most appalling of all, the Department of Health’s neglect of abortion patients’ safety and of Pennsylvania laws is clearly not inadvertent: It is by design. … Continue reading
Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court, is already being painted as a moderate by the media and some political interest groups. This portrayal of Kagan is difficult to dispute comprehensively because of her lack of a public record and accompanying statements that delineate her actual personal views on judicial philosophy, thus, complicating the venture of placing her on an ideological spectrum.
Despite this hermeneutical difficulty, allegedly confident political portraits have been made with the details that we do know about Elena Kagan. The New York Times on May 11 published a piece—“As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban”—by Peter Baker discussing a memorandum authored by Kagan while she was working for the Clinton Administration. Kagan in the memo counseled President Clinton to support an amendment, authored by Senator Tom Daschle (D-SD), to Republican-sponsored legislation to ban partial-birth abortion that would include an exception for the “health” of the pregnant women in a ban—so broad an exception that it could be easily employed as a loophole that would prevent few, if any, partial-birth abortion procedures.
President Clinton and his advisors (in this case, Kagan) anticipated that the Daschle amendment would not secure enough votes to pass, but White House support could provide enough political cover for Democratic lawmakers who could reiterate their alleged support of the partial-birth abortion ban, but justify their vote against it because of the lack of inclusion of the broad “health” exception for the pregnant woman. In the end, the Daschle amendment failed and the Republican-sponsored partial-birth abortion ban, endorsed by the National Right to Life, was successfully sent to President Clinton who consequently vetoed it. Kagan’s advice to the President was successful and held up the passage of a partial-birth abortion ban for six years.
Douglas Johnson, the legislative director of the National Right to Life, before a joint-hearing before the U.S. Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee in 1997 said:
“The Clinton-Daschle proposal is a political construct, designed to provide political cover for lawmakers who want to appear to their constituents as if they have voted to restrict partial-birth abortions, while actually voting for a hollow measure that is not likely to prevent a single partial-birth abortion, and which therefore is inoffensive to the pro-abortion lobby.”
In other words, a better reading of the facts is not that Kagan is “in the middle” on abortion, but rather she was advising President Clinton of the pragmatic steps (endorsing a pseudo-ban on partial birth abortion) needed to defeat the actual pro-life measure. Kagan may very well be a “legal progressive” as was recently claimed from the White House defending the nominee from the political left suspicious of her liberal credentials. Continue reading
- US Catholic Bishops: Executive Order Deal A Non-Starter:
- In deal with Stupak, White House announces executive order on abortion (Washington Post):
Resolving an impasse with anti-abortion Democrats over the health-care reform legislation, President Obama announced Sunday that he will be issuing an executive order after the bill is passed “that will reaffirm its consistency with longstanding restrictions on the use of federal funds for abortion,” according to a statement from the White House.
“I’m pleased to announce we have an agreement,” Rep. Bart Stupak (D-Mich.) said at a news conference announcing the deal.
- “I think we’re witnessing Bart Stupak write the obit for the concept of the “pro-life Democrat” – Kathryn Jean Lopez (National Review).
We’ve consulted with legal experts on the specific idea of resolving the abortion funding problems in the Senate bill through executive order. We know Members have been looking into this in good faith, in the hope of limiting the damage done by abortion provisions in the bill. We believe, however, that it would not be fair to withhold what our conclusion was, as it may help members in assessing the options before them:
“One proposal to address the serious problem in the Senate health care bill on abortion funding, specifically the direct appropriating of new funds that bypass the Hyde amendment, is to have the President issue an executive order against using these funds for abortion. Unfortunately, this proposal does not begin to address the problem, which arises from decades of federal appellate rulings that apply the principles of Roe v. Wade to federal health legislation. According to these rulings, such health legislation creates a statutory requirement for abortion funding, unless Congress clearly forbids such funding. That is why the Hyde amendment was needed in 1976, to stop Medicaid from funding 300,000 abortions a year. The statutory mandate construed by the courts would override any executive order or regulation. This is the unanimous view of our legal advisors and of the experts we have consulted on abortion jurisprudence. Only a change in the law enacted by Congress, not an executive order, can begin to address this very serious problem in the legislation.”
U.S. Conference of Catholic Bishops
Further analysis of the text of the order: Continue reading
In my last post, I wrote about tensions, existing or potential, between the libertarian and social conservative elements in the tea party movement. Whereas before I was speaking of Christians in a broad and general sense, I will now turn to what I think the Catholic response to the tea party ought to be.
As I looked into this topic, I was dismayed by the utter predictability of responses from across the Catholic spectrum. The rad-trad response was irrational as always; the leftist response as arrogant and contemptuous as ever; and the mainstream response was unimaginative. Granted this is a very small sampling, but I wouldn’t be surprised if it was accurately representative of these currents.
28% of the tea party movement, according to the one poll we have so far, is Catholic. This means Catholics are slightly over-represented in the movement. As I also reported last time, 68% of tea partiers attend religious services regularly; for Catholics, that ought to mean they go to Mass every Sunday. Now one thing I think I can say that isn’t very controversial is that when it comes to fidelity to the Church’s teaching on non-negotiable issues, such as abortion, marriage, and parental education rights, Catholics that regularly attend Mass are doing a heck of a lot better than Catholics who don’t. So these Catholics that are faithful to Church teaching on important issues are also supporting the tea party; that to me is an indicator that there is little in the tea party that fundamentally contradicts Church teaching.
I have to say something about the latest Supreme Court ruling upholding “corporate personhood”, declaring that corporations and unions (when was their “personhood” established?) can contribute as much money to political campaigns they like in the name of free speech.
I am not a judicial scholar, but this argument looks absolutely rotten to the core. News articles tell me that Republicans are actually happy about this decision, mouthing the words “this is a victory for free speech”, and apparently believing them too.
Because of my limitless capacity for self-doubt, I suppose I can always leave the door open slightly ajar to the possibility that there really is some moral and social good or benefit to allowing multinational corporations and Mafia-infested labor unions to ride roughshod over the American electoral process.
However, because of my sanity, which normally tells me that “an artificial being, invisible, intangible, and existing only in contemplation of law” (to quote dissenting Justice Stevens, quoting John Marshall) isn’t a real person, I think this decision is one of the most anti-democratic, nakedly plutocratic I have ever heard of. Arguments for corporate personhood, and the freedom of speech that follows, ultimately give one a sense of what it is like to live in Oceania in Orwell’s 1984 and hold the revolutionary thought that 2+2 might actually equal 4, even when Big Brother says it equals 5. War is peace, slavery is freedom, and the freedom to buy politicians and elections is “freedom of speech.” Insanity is sane!
In his encyclical Aeterni Patris, Pope Leo XIII sought to advance the restoration of Christian philosophy against the modern trends of secular philosophy, emerging from Enlightenment rationalism. The critique of modern intellectual errors and the way in which such false thinking manifests itself in the world has deeply shaded my personal reflection on the tragedy of legal abortion.
[N]o one in the world who prizes liberty and human rights can feel anything but a strong kinship with America. Yours is the one great nation in all of history that was founded on the precept of equal rights and respect for all humankind, for the poorest and weakest of us as well as the richest and strongest.
As your Declaration of Independence put it, in words that have never lost their power to stir the heart: “We hold these truths to be self evident: that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness…” A nation founded on these principles holds a sacred trust: to stand as an example to the rest of the world, to climb ever higher in its practical realization of the ideals of human dignity, brotherhood, and mutual respect. Your constant efforts in fulfillment of that mission, far more that your size or your wealth or your military might, have made America an inspiration to all mankind.
It must be recognized that your model was never one of realized perfection, but of ceaseless aspiration. From the outset, for example, America denied the African slave his freedom and human dignity. But in time you righted that wrong, albeit at an incalculable cost in human suffering and loss of life.
Your impetus has almost always been toward a fuller, more all embracing conception and assurance of the rights that your founding fathers recognized as inherent and God-given.
Yours has ever been an inclusive, not an exclusive, society. And your steps, though they may have paused or faltered now and then, have been pointed in the right direction and have trod the right path. The task has not always been an easy one, and each new generation has faced its own challenges and temptations. But in a uniquely courageous and inspiring way, America has
Yet there has been one infinitely tragic and destructive departure from those American ideals in recent memory. Continue reading