Roe v. Wade
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
- 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
[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
Yesterday 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.
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.
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.
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.
In the course of the 2008 presidential campaign, a small group of Catholic and Evangelical Protestant intellectuals and activists, while saying that they personally support legal protection for the unborn and oppose the redefinition of marriage, promoted the candidacy of Barack Obama, who made no secret of his intention to wipe out the entire range of laws restricting or discouraging abortion and embryo-destructive research, or of his opposition to all state and federal initiatives (such as California Proposition 8 and the federal Defense of Marriage Act) to preserve marriage as the union of a man and a woman. These men and women assured their fellow Christians and other social conservatives that Obama’s economic policies would reduce the incidence of abortion, and they promised that Obama was being honest when he said that he was opposed to “same-sex marriage.”
Despite these assurances, we fear that the Obama administration will swiftly begin an assault on pro-life laws and pro-marriage policies.