Roe v. Wade
As we observe the sad thirty-seventh 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.
Deal Hudson at Inside Catholic wrote recently about the divisions in the pro-life movement over the Personhood Initiative, a nation-wide effort to legally define “personhood” as beginning at the moment of conception. The testing ground for the initiative was Colorado, where the movement’s founder, an admirable 19 year-old by the name of Kristi Burton, hails from. The lowdown, according to Deal, is that,
Colorado voters turned down the amendment by a stunning 73 percent to 27 percent, in spite of support from Focus on the Family, American Life League, and legal advice from the Thomas More Law Center. But the effort had failed to gain the support of either National Right to Life (NRTL) or the Colorado Catholic Conference.
Whether or not that extra support would have resulted in a less unbalanced result, I cannot say. For those wondering why the Catholic Conference, and many American bishops are hesitant to embrace the PI, the concern was apparently that if it were taken to, and shot down by, the Supreme Court, it would have the effect of “actively reaffirm[ing] the mistaken jurisprudence of Roe.” According to Deal, however, some Catholic bishops are reconsidering their position on the PI.
Not long ago, in the context of the debate over the efforts of Bart Stupak and the pro-life Dems, I wrote about pro-life pragmatism. I argued that the much-derided “incrementalism” is actually the most viable way of winning the long-term war against the abortion industry in light of the facts about where the American electorate stands on abortion. With respect to the PI, and with all due respect to the founders and supporters of this movement, I must reaffirm that position.
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.
It seems that tomorrow President Obama will overturn the Mexico City Policy and begin to provide American subsidized abortions below the border. This is said to occur tomorrow on the 36th Anniversary of Roe v. Wade.
Pray for the unborn children who will be massacred by the horror of abortion.
As is observed every time we discuss Supreme Court appointments, there is very little pro-life progress possible under the Roe v. Wade regime, because anything which is seen as unduly obstructing a woman’s access to terminate her pregnancy (and thus use her constitutional right to “privacy”) is struck down by the courts. And yet, while abortion on demand is decidedly not popular according to the polls, Roe v. Wade mysteriously is. A solid majority of people way they want to keep Roe v. Wade, despite the fact that a solid majority would also be in favor of legal restrictions on abortion well in excess of what Roe allows.
It seems to me that one of the most difficult tasks for the pro-life movement is thus not to convince the population that abortion should be seriously restricted and reduced (banning would right now be a very hard sell, but it would seem that a great deal of progress in that direction would be possible) but rather to convince citizens that Roe is actually an obstacle to this. Thus, “the fair fight initiative”. The purpose would be (and the lawyers on here can inform me if this is indeed a legal possibility) for Congress to pass a law which would officially remove from the federal government (legislature and courts) any ability to restrict or allow abortion.
One of the most common complaints directed at pro-lifers is that they are trying to overturn a Supreme Court decision that is popular with the American public. In one respect, this is a fair point. Roughly sixty percent of the country, when asked, says that they would not support overturning Roe. At the same time, roughly 2/3 of people say they would prefer the type of ‘stricter limits’ on abortion that are barred by Roe and Casey.
Noting this disconnect, Peter Suderman recently suggested that pro-lifers should focus on framing Roe as a barrier to compromise on abortion.
His Eminence the polite and soft-spoken James Francis Cardinal Stafford head of the Supreme Tribunal of the Apostolic Penitentiary gave a lecture on November 13 at the Keane Auditorium at Catholic University of America last week titled, “Pope Paul VI and Pope John Paul II: Being True in Body and Soul“. In it Cardinal Stafford critiqued President-elect Obama as “aggressive, disruptive and apocalyptic,“ and he further added that Obama ran an “extremist anti-life platform”.
Here are some highlights of his lecture:
“Because man is a sacred element of secular life,” Stafford remarked, “man should not be held to a supreme power of state, and a person’s life cannot ultimately be controlled by government.”
“For the next few years, Gethsemane will not be marginal. We will know that garden,” Stafford said, comparing America’s future with Obama as president to Jesus’ agony in the garden. “On November 4, 2008, America suffered a cultural earthquake.”
Cardinal Stafford said Catholics must deal with the “hot, angry tears of betrayal” by beginning a new sentiment where one is “with Jesus, sick because of love.”
The lecture, hosted by the Pontifical John Paul II Institute for Studies on Marriage and Family, pertained to Humanae Vitae, a papal encyclical written by Pope Paul VI in 1968 and celebrating its 40 anniversary this year.
Stafford also spoke about the decline of a respect for human life and the need for Catholics to return to the original values of marriage and human dignity.
“If 1968 was the year of America’s ‘suicide attempt,’ 2008 is the year of America’s exhaustion,” said Stafford, an American Cardinal and Major Penitentiary of the Apostolic Penitentiary for the Tribunal of the Holy See. “In the intervening 40 years since Humanae Vitae, the United States has been thrown upon ruins.”
Election fever is catching everybody these days, even bishops, and since it’s so fashionable to issue clarifying statements about the 30+ page Faithful Citizenship document, Cardinal Justin Rigali (chairman of the USCCB* Committee on Pro-Life Activities) and Bishop William Murphy (chairman of the USCCB Committee on Domestic Justice and Human Development) have issued a clarification about clarifications of Faithful Citizenship.
Though my tone in stating this is flip, there’s some very good material in the two page letter:
“Catholic Answers: Two books for voters who take their faith seriously”- Doug Kmiec, who has lately become something of a poster-boy and spokesman for ‘Catholics for Obama’, reviews Archbishop Chaput’s Render unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life (Doubleday, 2008) and A Nation for All How the Catholic Vision of the Common Good Can Save America from the Politics of Division , by Chris Korzen and Alexia Kelley.
As to be expected, Kmiec finds a sympathetic ear in Korzen & Kelley, given their assertion that Catholics have become ‘preoccupied’ with abortion to the subordination of peace, the environment and welfare: