An Exercise in Raw Judicial Power

Friday, January 22, 2010 \AM\.\Fri\.

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.

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The Personhood Initiative

Tuesday, January 19, 2010 \AM\.\Tue\.

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.

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

Friday, October 2, 2009 \AM\.\Fri\.

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.

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Are All Abortions Equal?

Tuesday, June 9, 2009 \PM\.\Tue\.

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.

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You’ve Come A Long Way Baby?

Thursday, May 14, 2009 \AM\.\Thu\.

Female Foeticide

The concept that abortion is a womens’ issue or a feminist issue I have always found bleakly funny.  The dirty little secret about abortion is of course that it has been a bonanza for predatory males.  As actor Gary Graham in this incredibly moving piece notes: “So this abortion thing was pretty damn convenient for a guy.”  Feminist self-deception aside, abortion is all about letting men enjoy sex without consequences.  The consequences are of course merely shifted from the man to the dead child, and to the woman who has to pretend that destroying the life she carried within her was her “right”, and that she feels happy about this, dreadful nightmares notwithstanding, crying  jags that obviously have nothing to do with the abortion, feeling worthless, being unable to quite look straight in the mirror, etc.

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Mary Ann Glendon

Tuesday, April 28, 2009 \AM\.\Tue\.

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.

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Scalia on Stare Decisis and Roe

Sunday, March 22, 2009 \AM\.\Sun\.

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.

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