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How Not To Overturn Roe v. Wade
FIRST THINGS ^ | NOV 2002 | Paul Benjamin Linton

Posted on 11/26/2002 1:06:24 PM PST by Remedy

An aside in Justice Antonin Scalia’s recent article, "God’s Justice and Ours" (FT, May), provides a useful and timely reminder that efforts to overrule Roe v. Wade through "personhood" litigation are doomed to failure. In the course of his article (which focuses on the morality of the death penalty), Justice Scalia writes: "My difference with Roe v. Wade is a legal rather than a moral one: I do not believe . . . that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter."

Several organizations, including the National Foundation for Life and the Texas Justice Foundation, have undertaken litigation that is intended to overturn Roe v. Wade and establish the legal personhood of the unborn child. The National Foundation for Life (NFFL) modestly describes its litigation strategy as the "Global Project." This strategy suffers from many analytical and methodological errors, not the least of which is the notion, central to the ongoing federal litigation in New Jersey (the Donna Santa Marie ýase now on appeal in the Third Circuit), that a woman who has been coerced into having an abortion has no legal remedy under the state’s wrongful death statute when, in fact, such a remedy clearly exists under current law—either a common law action for battery or, if state actors are involved, a federal civil rights action, which the Supreme Court itself approved of in Planned Parenthood v. Casey (1992). And for those women who have not @een coerced into having an abortion (which is to say virtually all women who undergo abortions), how can it be said that their rights (as opposed to their children’s rights, discussed below) have been violated? The essential shortcoming of this type of litigation, however, is that it aims at persuading the Justices of the Supreme Court of the existence of a fact—that the unborn child is a developing member of the human family from the moment of conception—with which they already are familiar.

The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken. Every member of the Court understands what an abortion is. If there was any doubt about this before, the Court’s decision in Stenberg v. Carhart two years ago, striking down Nebraska’s partial-birth abortion law, should have laid that doubt to rest. The majority opinion’s cold and clinical description of various abortion methods betrays no ignorance of the nature of abortion. The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child. Whatever reservations some members of the Carhart majority may have about the morality of abortion in general or the partial-birth technique in particular, those reservations have not affected their collective judgment that women need abortion to be legal in order for them to be full and equal members of American society. It is that judgment, and not any misunderstanding of what happens in an abortion, that is the source of our present predicament, as even a casual perusal of the Court’s opinion in Casey reaffirming Roe v. Wade would disclose.

Instead of meeting head-on the Court’s rationale for adhering to the abortion liberty, the NFFL veers off in a different direction, arguing for the "personhood" of the unborn child. But by now, it should be clear that no member of the Court—past or present—believes that the unborn child is a "person," as that term is used in Section 1 of the Fourteenth Amendment. Seventeen justices have sat on abortion cases since and including Roe, and not one has ever stated that the unborn child is a constitutional person. Neither then-Justice William Rehnquist nor the late Justice Byron White, both of whom dissented in Roe, took issue with the Court’s holding that the unborn child is not a constitutional person. Both Justices, then and later, recognized the states’ authority to legislate in this area. Dissenting in Roe, Justice Rehnquist stated that "the drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to this matter [i.e., abortion]." Dissenting in both Roe and Doe v. Bolton, the companion case to Roe, Justice White stated that "this issue [i.e., abortion], for the most part, should be left with the people and the political processes the people have devised to govern their affairs."

No present or past Justice has ever taken the position that the unborn child is, or should be regarded as, a "person" as understood in the Fourteenth Amendment, including the late Justice White, perhaps the most eloquent critic of Roe v. Wade. And in the Carhart case, the Court refused even to consider Nebraska’s argument that a partially born child is a constitutional person. That question was rejected for review without dissent. So much for the naive notion of "forcing" the Court to take on the personhood issue.

But there is more than silence to indicate the Justices’ views. Dissenting in Casey, Justice Antonin Scalia stated, "The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." This statement, in an opinion that Chief Justice Rehnquist, Justice White, and Justice Clarence Thomas joined, quite obviously is not compatible with a recognition of personhood. And in dissenting from the Court’s decision to strike down the Nebraska partial-birth abortion ban, Chief Justice Rehnquist and Justices Scalia and Thomas once more urged that the issue of abortion be returned to the states.

In his brief dissent in Carhart, Justice Scalia stated that "the Court should return this matter to the people—where the Constitution, by its silence on the subject, left it—and let them decide, state by state, whether this practice should be allowed." Justice Thomas, writing for himself, Chief Justice Rehnquist, and Justice Scalia, began his lengthy dissent by stating: "Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother."

Entirely apart from the issue of personhood, there is little basis for believing that any of the Justices would accept the argument that the Supreme Court (or any court) is qualified to state when human life begins. Dissenting in Casey, Justice Scalia, joined by the Chief Justice and Justices White and Thomas, wrote that the question of when human life begins is not "a legal matter" capable of resolution by a court, but, instead, is "a value judgment" that may be made only by the political branches of government. In his concurring opinion in Ohio v. Akron Center for Reproductive Health (1990), Justice Scalia said that the determination of when human life begins is a question not capable of judicial resolution and instead must be left to the political process where compromise and accommodation of divergent views is possible. This theme—that the resolution of the abortion question should be left to the political branches of government—has been a leitmotif of Justice Scalia’s abortion opinions.

The immediate objective of the NFFL’s strategy is to compel New Jersey and a handful of other states to recognize wrongful death actions for unborn children where such actions are not currently allowed. But this objective, to the extent that it is intended to challenge Roe, is also misdirected. Nothing in Roe, properly understood, forbids New Jersey or any other state from imposing civil liability and/or criminal sanctions on anyone who causes injury to or the death of an unborn child (outside the context of abortion). Indeed, many more states recognize such civil actions (and punish such crimes) now than before Roe was decided. One might go further and argue that the Constitution should forbid one person (the pregnant woman) from being able to consent to the injury or death of another person (her unborn child), but that assumes a state of affairs in which both persons are entitled to the protection of the Constitution. For the reasons set forth above, no federal court is going to hold that New Jersey (or any other state) must extend its wrongful death statute to unborn children on either equal protection or due process grounds, regardless of whether their death occurs as a result of abortion or otherwise.

But if the NFFL strategy is pursued, several federal courts will hold, as Roe did and as the Third Circuit already has in an earlier failed attempt of the "Global Project," Alexander v. Whitman (1997), that the unborn child is not a constitutional person ("the short answer to plaintiffs’ argument is that the issue is not whether the unborn are human beings, but whether the unborn are constitutional persons"). These decisions, none of which has been (or is likely to be) reviewed by the Supreme Court, simply reinforce the positivist legal principle that having the attributes of humanity is not enough to entitle one to the protection of the law. That result, in my judgment, would be most regrettable.

Roe may be (and we must hope and pray will be) overturned some day, either by a Court decision returning the issue to the states or by a constitutional amendment. But most assuredly it will not come about through an effort like the NFFL’s "Global Project," which simply diverts scarce pro-life resources into a quixotic venture destined to fail. Justice Scalia’s recent restatement of his view that the Constitution does not speak to the issue of abortion at all should serve as a much needed wake-up call to those who think otherwise.

Paul Benjamin Linton is an attorney who specializes in pro-life litigation and legislative consulting, and has served as General Counsel of Americans United for Life. His article "Same-Sex ‘Marriage’ Under State Equal Rights Amendments" appears in the current issue of the St. Louis University Law Journal.

TOPICS: Constitution/Conservatism; Culture/Society; Government
KEYWORDS: abortion; abortionlist; courts; prolife
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Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty Antonin Scalia replies:

I also disagree with the "seamless garment" or "culture of death" argument, which links the death penalty with approval of abortion. Anyone who thinks that the elimination of capital punishment will give the abortion-prone woman second thoughts has to be delusional. The "pro-choice" American believes as much as anyone else that life-out-of-the-womb is sacred; sparing the life of a double axe-murderer is unnecessary to drive home that point. Indeed, in my experience the abortion-rights advocate, usually a liberal, is more likely to abhor the death penalty than the abortion opponent, usually a conservative. What the "pro-choice" American does not believe is that a human fetus is as fully a human life as Uncle Charlie. Eliminating the death penalty does not remotely address that issue.


Roe v. Wade: Flawed Logic and Obsolete Knowledge

The foundation for Roe v. Wade was never valid. In fact, few in the legal community deny that the decision is based on flawed legal reasoning and an obsolete state of knowledge. Even Roe's supporters avoid discussing the merits of its legal reasoning. Furthermore, what was once uncertainty and disagreement about when human life begins is now indisputable fact backed by a consensus of physicians and scientists.

The Illogic of the Casey stare decisis Analysis

The opinion of the majority of the court in Casey stated that the court need not review the legal questions concerning abortion as if they were before the court for the first time. Two of the members of the court who had previously voted to overturn Roe v. Wade because it did not have a legitimate legal basis joined in this majority opinion saying that they need not state what the correct legal analysis would be if the issues were presented to the court for the first time. These judges justified reaffirming Roe based upon a legal doctrine called stare decisis, a doctrine which holds that prior court decisions, as a general proposition, should be followed in later cases. The Supreme Court used three illogical assumptions to justify its application of stare decisis to the Casey suit. This section explains the illogic of Casey.

The Supreme Court Places the Blame for Its Perpetuation of Its Own Decision in Roe v. Wade on the American People

 The Casey court said that it had to re-affirm Roe v. Wade because the American people have come to rely upon abortion. In other words, whether Roe was correctly decided or not the Court would give the people what the Court claimed the people had come to rely upon.

In 1973, the people of virtually every state banned and prohibited abortion. The people of the states believed it was morally reprehensible and legally unjustifiable. Then the Supreme Court, in Roe v. Wade took the power away from the people to ban abortion, saying that the doctor's act of killing a child was protected by the Constitution and that the people's action prohibiting it was beyond its power.

In 1992, in the Casey decision the Supreme Court effectively said that the Roe decision, which said the people did not have the power to ban abortion, may have been incorrectly decided if reviewed by the Casey court for the first time. However, the Court said that it was exonerated from its duty to correct its own mistake because the Court claimed that the people had come to rely on abortion. For that reason, the Casey court said that the court would continue to take the power away from the people. Thus, the court which forced the people of the states to legalize abortion now blamed the people for perpetuation of the court's error.

Donna Santa Marie et al v. Whitman et al. Procedural History

 Donna Santa Marie, Jane Jones, and Mary Doe all lost their children at the hands of three different abortion doctors. One doctor terminated the life of Donna's child in an involuntary abortion procedure. The abortions performed on Jane and Mary were done without a valid, informed consent.

All three women filed unrelated medical malpractice cases against the respective doctor who performed the abortion. In the case filed by Jane, the abortion doctor and his lawyers filed a motion to dismiss the complaint on the grounds that New Jersey created a fiction that the baby never existed, and therefore Jane did not sustain the loss of her child. The abortion doctor argued that such a fiction was consistent with and was authorized by Roe v. Wade. Jane's lawyers filed papers in opposition to the motion to dismiss, which included affidavits and reports from an international team of scientific and medical experts who could prove that the child is a complete, separate, unique human being throughout gestation. Her lawyers also filed briefs which argued how New Jersey's law violated Jane's own equal protection rights as well as the rights of her baby. Jane and her lawyers also filed a motion to stay the state court case in order to allow the federal constitutional issues to be litigated in the federal court. The state court judge signed a consent order staying the state court action and giving Jane 90 days to file the federal suit. In the same order, the state court judge ordered the litigants not to divulge the identity of Jane Jones, but to allow her to move forward under a fictitious name to protect her privacy.

Jane filed the federal complaint within the 90 days allotted by the state court judge. At the time she filed the complaint, Donna Santa Marie and Mary Doe, who both had pending state court cases against their doctors, in different counties, joined Jane's suit and collectively their cases are known as Donna Santa Marie et al v. Whitman et al. In addition to these three women, two other women who have active obstetrical medical practices joined the lawsuit as party plaintiffs. In this section, you will find the history of the proceedings in the federal case and you can download copies of the pleadings, briefs, and other documents as they become part of the public record.

The Legal Team - Santa Marie, et. al. v. Whitman, et. al.

The Honorable Thomas F. Shebell, Jr., P.J.A.D., Retired was a Presiding Judge, Appellate Division, Superior Court of New Jersey where he served from 1983 to 1998, and currently serves of counsel to the firm of Shebell & Shebell, specializing in arbitration, mediation and federal litigation.

Robert P. George, Ph.D., J.D. acts as a legal advisor to the National Foundation for Life and counsels on its projects. He is a Tenured Professor, Department of Politics, at Princeton University, and a recent commissioner on the United States Commission on Civil Rights, appointed by President Bush in 1993. His other academic positions include that of visiting Fellow in Law at Oxford University and visiting Professor at Georgetown University.

Harold J. Cassidy, J.D. is the attorney of record for Donna Santa Marie as well as the two other plaintiffs in the New Jersey state court proceedings. These clients came to him in his private practice in New Jersey seeking to redress their grievance against the abortion doctors who terminated the lives of their children. As counsel for Donna he has initiated the formulation of the federal action.

A partner in the New Jersey law firm of Cassidy, Messina & Laffey, he has been designated by the New Jersey Supreme Court as a Certified Civil Trial Attorney.

Pro-Life is Pro-Choice

 Once the facts are properly understood it is clear that the position traditionally referred to as pro-life - the protection of the child's life throughout pregnancy - is the only true pro-choice position because a mother's natural, inalienable and constitutional right to her relationship with her child can only be preserved if decisions surrounding the waiver of those rights are knowing, voluntary and informed in the fullest sense so that there is a full appreciation of the rights being surrendered.

The mother of the child she carries possesses a fundamental right to maintain her relationship with her child. Abortion was legalized based upon the assumption that the child was not in existence. Based upon that false assumption of fact, abortion was seen as nothing other than a way to prevent a human being from coming into existence. The abortion was thus intended to protect interests that a woman has in planning when she would have a child.

This false assumption has caused great harm to both the mother's rights and the mother's health.

Because legalized abortion totally ignores that the mother has a legal, moral, and human interest in the life of her existing child and the Constitutionally protected relationship with that child, it has completely denied any meaningful choice in determining whether or not a woman should maintain her rights or whether she should waive her rights to her relationship with her child.

STENBERG v. CARHART :Justice Scalia, dissenting.

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child-one cannot even accurately say an entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

* * *

In my dissent in Casey, I wrote that the "undue burden" test made law by the joint opinion created a standard that was "as doubtful in application as it is unprincipled in origin," Casey, 505 U.S., at 985; "hopelessly unworkable in practice," id., at 986; "ultimately standardless," id., at 987. Today's decision is the proof. As long as we are debating this issue of necessity for a health-of-the-mother exception on the basis of Casey, it is really quite impossible for us dissenters to contend that the majority is wrong on the law-any more than it could be said that one is wrong in law to support or oppose the death penalty, or to support or oppose mandatory minimum sentences. The most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.

While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion's expressed belief that Roe v. Wade had "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since"; and that, "by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees." Id., at 995-996. Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism-as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O'Connor's concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.


To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken. Every member of the Court understands what an abortion is. If there was any doubt about this before, the Court’s decision in Stenberg v. Carhart two years ago, striking down Nebraska’s partial-birth abortion law, should have laid that doubt to rest. The majority opinion’s cold and clinical description of various abortion methods betrays no ignorance of the nature of abortion. The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child.


 Nihilism and the End of Law

Yale Law Professor, Arthur Leff, expressed the bewilderment of an agnostic culture that yearns for enduring values in a brilliant lecture delivered at Duke University in 1979, a few years before his untimely death from cancer. The published lecture - titled, "Unspeakable Ethics, Unnatural Law" - is frequently quoted in law review articles, but it is little known outside the world of legal scholarship. It happens to be one of the best statements of the modernist impasse that I know. As Leff put it,

I want to believe - and so do you - in a complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe - and so do you - in no such thing, but rather that we are wholly free, not only to choose for ourselves, individually and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good to create it.

The heart of the problem, according to Leff, is that any normative statement implies the existence of an authoritative evaluator. But with God out of the picture, every human becomes a godlet - with as much authority to set standards as any other godlet or combination of godlets. For example, if a human moralists says "Thou shalt not commit adultery", he invites the formal intellectual equivalent of what is known in barrooms and schoolyards as 'the grand sez who?' Persons who want to commit adultery, or who sympathise with those who do, can offer the crushing rejoinder: What gives you the authority to prescribe what is good for me?

Arthur Leff had a deeper understanding of what the death of God ultimately means for man. He saw modern intellectual history as a long, losing war against the nihilism implicit in modernism's rejection of the unevaluated evaluator who is the only conceivable source for ultimate premises. Leff rejected the nihilism implicit in modernism, but he also rejected the supernaturalism that he had identified as the only escape from nihilism. Here is how he concluded his 1979 lecture:

All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinary, unappetising prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cane and Abel. Neither reason, nor love, nor even terror, seems to have worked and made us "good", and, worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us could law be unnatural, and therefore unchallengeable. As things stand now, everything is up for grabs.

Those who stood up and died resisting Hitler, Stalin, Amin and Pol Pot - and General Custer too - have earned salvation.


But by now, it should be clear that no member of the Court—past or present—believes that the unborn child is a "person," as that term is used in Section 1 of the Fourteenth Amendment.


On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)

The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition. - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.

"[W]e have no government armed with power capable of contending with human passions unbridled by religion morality and. . . . Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams, The Works of John Adams, Second President of the United States


Roe may be (and we must hope and pray will be) overturned some day, either by a Court decision returning the issue to the states or by a constitutional amendment.

IMPEACHING FEDERAL JUDGES: A COVENANTAL AND CONSTITUTIONAL RESPONSE TO JUDICIAL TYRANNY Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny, was cited twenty-four times at the House Impeachment Hearings in 1999.

The Ex-abortionists: Why They Quit

The Moral Question of Abortion

When Do Human Beings Begin? "Scientific" Myths and Scientific Facts

The Tenth Amendment: Its Historical Background and Importance Today

President Bush’s Standard For Judicial Selection

When President Bush nominated 11 individuals to the U.S. Court of Appeals on May 9, 2001, he explained "the standards by which I will choose all federal judges." He said:

"Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase…James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference."

If judicial philosophy – the way a judge achieves results – is the most important issue in judicial selection, judicial ideology – the results a judge achieves – is the most tempting. In this ends-justify-the-means culture, what we want is more immediately appealing than how we get it. Focusing on the "how" rather than the "what," after all, suggests that we might not get what we want if we try to get it in the wrong way.

That is why we must always insist that the issue is liberty. Hamilton wrote, quoting Montesquieu, that "’there is no liberty if the power of judging be not separated from the legislative and executive power’." The Supreme Court has recognized that this separation of powers was "adopted by the Framers to ensure the protection of ‘our fundamental liberties."5 And now President Bush has pledged to appoint judges who know the difference between interpreting and making law.

Some conservatives seem less willing to stick to these principles when the opportunity arises for favorable judicial appointments. When the potential exists, they switch from emphasizing liberty and "how" to politics and "what." Needless to say, this is not only wrong as a matter of fundamental principle, but it damages credibility and, ultimately, is a losing political strategy. The most productive approach is to consistently focus attention on President Bush’s judicial selection standard.




1 posted on 11/26/2002 1:06:25 PM PST by Remedy
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To: Mr. Silverback; toenail
2 posted on 11/26/2002 1:37:10 PM PST by Libertarianize the GOP
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To: *Abortion_list; *Pro_Life
3 posted on 11/26/2002 1:39:29 PM PST by Libertarianize the GOP
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To: Remedy
4 posted on 11/26/2002 2:11:46 PM PST by The Obstinate Insomniac
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To: Remedy
There's something I might as well ask, and hope not to be be flamed. Now everyone knows that Roe Vs Wade legalized abortion and made it a federal issue, before that, it had been a states rights issue (in fact before roe vs wade, several states allowed abortion already).

Here's the question, if Roe Vs Wade is overturned, should it remain a states rights decision, or should a federal law banning the practise immediatley be sought for by congress?

5 posted on 11/26/2002 2:14:31 PM PST by Sonny M
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To: Sonny M
If Roe v. Wade were overturned on the grounds that it was a judicial overreaching into areas forbidden by the constitution, a federal law banning abortion would be extremely unlikely to pass similar muster.
6 posted on 11/26/2002 2:33:09 PM PST by Doug Loss
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To: Sonny M
First, Roe did not prohibit regulation by states of abortion, just certain kinds of regulation.

As I recall, the Roe decision stated that abortion was a federal issue under either the Equal Protection or (less likely) the Due Process provisions of the 14th amendment to the US Constitution. In order to overrule Roe, I believe the US Supreme Court would have to find that there there is no equal protection issue compelling federal interference, and that the 14th amendment does not regulate abortion. By doing so, the issue would/should automatically fall back to the states. Congress passing any law on the subject would be odd, considering that the Court just ruled that abortion is not within the purview of the 14th amendment, and hence, not within Congress' legislative mandate. Therefore, Congress both cannot and should not pass such a law if Roe were to be overruled. The issue would rightfully belong to the states.
7 posted on 11/26/2002 2:33:45 PM PST by rogerthedodger
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To: Remedy
self ping for later reading
8 posted on 11/26/2002 2:34:10 PM PST by ER_in_OC,CA
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To: Sonny M

Here's the question, if Roe Vs WadeDred Scott is overturned, should it remain a states rights decision, or should a federal law banning the practise immediatley be sought for by congress?

The reasoning in Dred Scott and Roe v. Wade is nearly identical. In both cases the Court stripped all rights from a class of human beings and reduced them to nothing more than the property of others. Compare the arguments the Court used to justify slavery and abortion. Clearly, in the Court's eyes, unborn children are now the same "beings of an inferior order" that the justices considered Blacks to be over a century ago.


Thus, our Founding Fathers, in the Declaration, acknowledged the existence of the Laws of Nature and the Laws of Nature's God and the applicability of those "laws" to the new nation. They also concluded that "a decent respect to the opinions of mankind" required that they should declare the "causes" which led to the separation from Great Britain.

The way and manner in which our Founding Fathers set forth those "causes" is most interesting. First, they set forth some "truths" which they classified as being "self-evident." This was done by the following language:

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.

That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Thus, the "purpose" of any government, according to the Declaration, is to "secure" the "unalienable Rights" with which " all men" are endowed by their Creator.

It is clear from the language of the Declaration that the Form of Government of any government should consist of these two parts, (1) a foundation of principles (i.e., the source or basis of unalienable rights) and (2) the organization of its powers.

Since the Constitution is designed to organize the powers of the government, it makes no mention of "unalienable Rights" nor does it make any mention of the transcendent truths or principles from which those unalienable rights descend, rest or depend. Neither does the Constitution refer to "Nature's God," to the "Laws of Nature's God" or to the Creator. Apart from the Declaration there is simply no basis in the Organic Laws of our Nation for officeholders to acknowledge that there are such things as "unalienable Rights."

If humans are possessed with unalienable individual "rights"-individual "liberty" -then the government must acknowledge and honor those " unalienable Rights." This constitutes a limitation upon the "power" or the "authority" of the government. It is just that simple. If the people in America are possessed with individual unalienable "rights" which are to be acknowledged and honored by the government, then the government does not have the "power" or the "authority" to destroy those "rights." Its power is limited in that regard. In fact, the government is obligated to protect or "secure" those individual unalienable "rights."

The question is then raised as to whether our Founding Fathers intended for the governmental form which they established to acknowledge and honor individual unalienable "rights" or whether they intended to establish a governmental form with totalitarian powers in the government. With this question in mind, we look at the documents prepared and approved by our Founding Fathers which (1) established our nation and set forth the foundation for its government, and (2) organized the powers of this government.

If there is no legal connection or relationship between the "Constitution" and the Declaration, then the officeholders have only the Constitution to look to for their guidance and instruction. Since the Constitution contains no provisions referring to unalienable rights or to the source of those unalienable rights, or transcendent, unchangeable and unchanging principles, there is simply no limitation on the powers of the constitutionally oriented government. Thus, if the officeholders are obligated to look only to the Constitution as a freestanding document in the performance of their official duties and ignore the Constitution connection with or relationship to the Declaration, then America has a government with totalitarian powers which has no obligation whatsoever to even acknowledge, much less "secure," that Americans are endowed with unalienable rights, including the right to Life, Liberty and the Pursuit of Happiness.

On the other hand, if there is a legal connection or relationship between the Declaration and the Constitution, then all officeholders are obligated, under their oath or affirmation, to interpret the Constitution in accordance with that legal connection or relationship. Since the Declaration refers to "self-evident" truths (transcendent truths or principles) and "unalienable Rights" the Constitution is to be interpreted in the light of the existence of those self-evident truths and "unalienable Rights."

9 posted on 11/26/2002 2:37:35 PM PST by Remedy
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To: Remedy
Apart from the Declaration there is simply no basis in the Organic Laws of our Nation for officeholders to acknowledge that there are such things as "unalienable Rights."

Well, there are other authorities for such rights. Many if not most 'rights' can be found enshrined in the state constitutions, as well as (and more anciently) the Common Law of England which, the state constitutions incorporate.
10 posted on 11/26/2002 2:47:45 PM PST by rogerthedodger
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To: patent
11 posted on 11/26/2002 3:04:01 PM PST by Libertarianize the GOP
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To: rogerthedodger
The right to abortion in Roe v. Wade is derived from the right to privacy, to be free of government intrusion into purely personal matters. See Griswold v. Connecticut.

Except from Roe:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 [Page 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The [Page 154] Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

ROE v. WADE, 410 U.S. 113, 152-154 (1973)
12 posted on 11/26/2002 3:20:11 PM PST by CobaltBlue
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To: BibChr; Caleb1411; MHGinTN
13 posted on 11/26/2002 3:20:50 PM PST by rhema
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To: CobaltBlue
The decision reads: "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is . . ."

The Supreme Court relied on it's magical ability to divine rights from the "penumbras" of the 14th Amendment. In otherwords, they made it up. It ain't there. There ain't no such right.
14 posted on 11/26/2002 4:00:24 PM PST by rogerthedodger
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To: rogerthedodger

Well, there are other authorities for such rights. Many if not most 'rights' can be found enshrined in the state constitutions, as well as (and more anciently) the Common Law of England which, the state constitutions incorporate.

The Rights of the Unborn from Common Law to Constitutional Law

Most of the rights secured by the Constitution of the United States in the Bill of Right were first enshrined in English Common Law and were an enumeration or incorporation of these rights into our Constitution. This is so true that when Louis Brandeis and Sam Warren, Boston lawyers, wrote their ground-breaking study of the Right to Privacy in 1890, they drew almost exclusively upon principles of English Common Law.

English Common Law contains the precedents that became the very language of our Constitution, and it is from this well of principles, precedents and declarations that our legal system draws its precedents and principles, as well as the very language in which these precedents and principles are expressed.

The Bill of Rights was, in fact, 'the incorporation and absorption of rights already established in English Common Law.' Because of the work of Brandeis and Warren, privacy was recognized as a constitutional right by the Supreme Court in Griswold v. Connecticut and Roe v. Wade, as one of the "non-enumerated" rights protected and guaranteed by the 9th Amendment of the Constitution.

The legal question is: Do the rights in the Bill of Rights, and the immunities protected by the 14th Amendment, apply to the unborn? In other words, is there in English Common Law any declaration of the rights of the unborn which would warrant incorporation in the 14th Amendment? The answer is "Yes", and there is a twofold basis in Common Law.

The Rights of the Unborn: The Constitutional Challenge to Roe v. Wade


The constitutional issues raised by Roe v. Wade have never had, a public airing and the public debate on the subject has turned on philosophical rather than legal issues. This study attempts to bring into focus some of the constitutional issues involved, but by no means exhausts them. it is merely an overview of a totally new development in constitutional law, a development that could be labeled embryonic law.

The Rights of the Unborn: The Constitutional Issues

Constitutional issues in the United States arise through litigation, through actual disputes brought into the courts. These issues are also resolved by litigation, by further action in the courts until the constitutional issues are clarified. This has been true in the past and it will be true of any national dispute that arises in the future.

What happens in litigation in constitutional matters is that principles imbedded in the Constitution, but not explicit in the text of the Constitution, emerge by the litigation process, and these principles become part of the constitutional inheritance of the nation and themselves become precedents for the resolving of future disputes.

The principles that have emerged in the past through litigation are numerous, but I will mention ten, which have become part of the fabric of constitutional law in the United States. These principles, it must be insisted, are implicit in the Constitution itself, and only emerged through litigation. Litigation is the process by which the Constitution is applied to new times and circumstances, resolving new issues as they arise.

15 posted on 11/26/2002 4:53:34 PM PST by Remedy
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To: CobaltBlue

Conclusion from Blackmun: "Under the Right to Privacy, guaranteed by the Fourteenth Amendment, a woman has a right to terminate the life of the unborn. The unborn have no human status and therefore no legal status that the law has to respect."

Contrary Conclusion: "The unborn is a true human being in utero and is entitled to all the rights, privileges and immunities guaranteed by the Bill of Rights to every citizen of the United States."

16 posted on 11/26/2002 5:07:13 PM PST by Remedy
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To: Remedy
Bump, for later read.
17 posted on 11/26/2002 5:13:27 PM PST by FairWitness
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To: CobaltBlue
The right to abortion in Roe v. Wade is derived from the right to privacy, to be free of government intrusion into purely personal matters.

Not everything we do in private is a purely personal matter.

I'm not allowed to sit in privacy and steal money from others through "hacking." I'm not allowed to sit in privacy and shoot stray cats. We are prevented from doing things like chopping down certain trees, in privacy, on our own land.

The government intrudes to save any number of species, as long as they aren't unborn homo sapiens.

18 posted on 11/26/2002 5:19:16 PM PST by syriacus
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To: rogerthedodger; rhema; CobaltBlue; BibChr; jwalsh07
Yes, they made it up out of 'pen'umbras, and thus have they knitted an evil corset which now binds the SCOTUS. But there may be a relief as yet unaddressed.

Here's the question, if Roe Vs Wade is overturned, should it remain a states rights decision, or should a federal law banning the practise immediatley be sought for by congress? 5 posted by Sonny M Perhaps, here is one of the keys to unlock this gordian knot, law addressing abortion is a states' rights issue.

Is it so outlandish to say that the Roe decision, which vaguely addressed a state's 'compelling interest' can be brought to the front ... as a compelling interest of the state where life support is the issue? If abortion law were referred back to the states, any state so writing such laws could address limitation which would direct the judicial judgement toward life support in a gradation fashion, as in making illicit any abortion after the twelfth week from last ovulation of the female, except where a continuing life support would endanger the life of the one giving life support. The rape and incest clauses would fall under the first three month 'window' of unadopted compelling interest of the state, but all terminations would be the purview of the states' right as a compelling interest for the one receiving life support.

19 posted on 11/26/2002 5:20:11 PM PST by MHGinTN
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To: Remedy
It is not the SCOTUS that has to be convinced that the unborn are indeed person's, it is the citizens of this nation and for that reason any organization arguing for personhood and fourteenth amendment rights for the unborn should continue down that path.
20 posted on 11/26/2002 5:28:03 PM PST by jwalsh07
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