Roe v. Wade

An Exercise in Raw Judicial Power

As we observe the sad forty-second anniversary of Roe v. Wade, the Supreme Court decision that overturned all state laws banning abortions and effectively served as a judicial death warrant for tens of millions of innocents, I think it is appropriate to pay tribute to the two dissenting Justices, Byron White, a Democrat, and William Rehnquist, a Republican.  Here are the texts of their dissents:

MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.

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 adviser 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.

Continue reading

Endless Debates

 

 

The New York Times hilariously believes that by agreeing to take up the question of gay marriage, the Court will resolve the issue, the Times assuming, as I do, that the Court is likely to strike down all laws against gay marriage and impose it by judicial fiat.

Such judicial interventions in the governance of this country in regard to hotly contested questions tend to be the starting of debates and not the ending of them.  This week on January 22, we will be observing the 42 anniversary of the decision of Roe v. Wade which sought to resolved the abortion issue.  The fight about abortion continues unabated, the Court’s pro-abortion rulings notwithstanding.  In a democracy, attempts by nine unelected lawyers in black robes to resolve questions of great moment tend not to work in the absence of political power and consensus to support the decision.  Mollie Hemingway at The Federalist reminds us that the Court has a long history of inflaming, rather than ending, debates in this nation:

In “Abuse of Discretion,” Clark Forsythe’s comprehensive look at how Roe v. Wade came to be, he notes that advocates of legalized abortion polled a very general question about whether abortion “should be between a woman and her physician.” Four months before the first arguments in Roe v. Wade were made, such a question got 64 percent affirming it in a Gallup poll, perhaps because the wording was so vague. (This is a bit of an aside, but Forsythe notes that abortion is almost never between a woman and her physician. Fewer than 5 percent of abortions are performed by a woman’s regular OB-GYN and almost all are performed by a stranger.)

You’d have to be living in a New York Times bubble to think that Roe v. Wade was either a limited decision or would end debate. In many ways, that decision is what led to many more people thinking deeply about abortion for the first time. And when they did begin thinking deeply about the topic, it frequently benefited the pro-life movement.

In another abortion decision years later, some justices signed onto some serious wishful thinking about court decisions settling the question of whether there is a right to kill an unborn child. Scalia’s dissent in Casey speaks to this and offers yet another example when the court thought it was settling another contentious issue (and that one’s a doozie):

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

I’ll give the New York Times this much: Whatever the Supreme Court decides on same-sex marriage, I bet it will end the debate at least as much as Dred Scott ended the debate about slavery, Roe ended the debate about abortion, and Casey ended the debate about abortion. Continue reading

Defending the Indefensible

 

Harry Blackmun

 

 

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.”

He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

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

Generations

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

Roe and Back Alley Abortions

 

 

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.

“Did you ever see those babies move?” asked Prosecutor Joanne Pescatore.

“Yes, once in the toilet,” said Cross.

The baby “was like swimming,” she said.  “Basically, trying to get out.”

Adrienne Moton, an employee at the clinic, then took the baby and   snipped the back of its neck while the mother was still in the room.

Cross told the jury that when Shayquana Abrams came into the clinic in July 2008 she was pregnant, “and she was big.”

“That was the largest baby I ever saw,” Cross said. Continue reading

Sarah Palin on Roe and Obama

 

 

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

Nothing Says Romance Like Genocide!

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

Abortion Q & A

On my blog.

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.

 

Trembling for my Country

Abortions since Roe

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?

The Worst Supreme Court Decision of All-Time

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.

Gosnell, Abortion and Reality

 

“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

Stupak Deal with Obama, The End of the Pro Life Democrat?

    US Catholic Bishops: Executive Order Deal A Non-Starter:

    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.”

    Richard Doerflinger
    U.S. Conference of Catholic Bishops

  • 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).

Further analysis of the text of the order: Continue reading

"a sad infidelity to America's highest ideals"

[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
kept faith.

Yet there has been one infinitely tragic and destructive departure from those American ideals in recent memory. Continue reading

Radio Personality: Members of the Opposing Party Should be Denied Health Care

Garrison KeillorYesterday Rush Limbaugh said that Democrats should be denied health care.  No, no, wrong radio personality!   If Rush had said anything that stupid, rest assured that you wouldn’t have had to wait to read about it on this blog to learn of it.  The networks would have been shouting the news and condemnatory editorials would have been thundering from newspapers coast to coast.  Instead it was just Garrison Keillor, National Public Radio’s Mark Twain wannabe, who decided that there are just too darn many Republicans and by gosh something should be done about it.  (As they would doubtless phrase a call for gopcide in Lake Wobegon.)  Writing in the Chicago Tribune,  Keillor has this charming sentiment:

When an entire major party has excused itself from meaningful debate and a thoughtful U.S. senator like Orrin Hatch no longer finds it important to make sense and an up-and-comer like Minnesota Gov. Tim Pawlenty attacks the president for giving a speech telling schoolchildren to work hard in school and get good grades, one starts to wonder if the country wouldn’t be better off without them and if Republicans should be cut out of the health-care system entirely and simply provided with aspirin and hand sanitizer. Thirty-two percent of the population identifies with the GOP, and if we cut off health care to them, we could probably pay off the deficit in short order.

Denying health care on the basis of political ideology.  Nice guy.  Of course Keillor was merely joking.  He has a long history of hating Republicans,   but I am sure he merely jokes, and perhaps fantasizes, about the deaths of those who have the temerity of disagreeing with him politically and in reality he would never harm a fly.  At least a Democrat fly.

Continue reading

Are All Abortions Equal?

As a matter of first principle, yes. As a matter of law, no, and such compromises are frequently necessary. Ross Douthat explains (is it just me, or does he seem somehow less influential as a New York Times columnist than he was as a blogger):

The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule. Because rape and incest can lead to pregnancy, because abortion can save women’s lives, because babies can be born into suffering and certain death, there should be no restrictions on abortion whatsoever.

As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.

Continue reading

Mary Ann Glendon

mary-ann-glendon

Mary Ann Glendon, Learned Hand Professor of Law at Harvard, is in the limelight now for her decision to deprive Jenkins of his fig-leaf over his invitation to honor Obama on May 17, 2009.  I am not surprised by this development.  She has long been an eloquent defender of the unborn in a completely hostile environment.  She has written many articles on the subject.

Continue reading

Scalia on Stare Decisis and Roe

Hattip to the ever eagle eyed Jay Anderson at Pro Ecclesia.   Justice Antonin Scalia on stare decisis and Roe.  By the way, Scalia’s low estimate of Roe as a legal opinion is pretty nearly universal in the legal world.  Liberal attorneys and judges, even though they support abortion on demand, will frequently agree in private, and sometimes in public, that Roe was a shoddy piece of legal work, and that Harry Blackmun, the author of Roe, was a poor excuse for a jurist.  This of course does not prevent them from supporting Roe since they approve of the result, but it does mean that all of the many cases following Roe are based on an intellectually, and of course constitutionally, rotten foundation.  We can see this in the opinions that strain to make sense of Roe, which, as Judge Bork famously noted, is completely devoid of legal argument.

Continue reading

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