Is there a constitutional principle so
sacrosanct that it can abide no exceptions? Perhaps the First Amendment? Nope.
Courts have placed reasonable restrictions on free speech and the practice of
religion. You can’t libel someone, nor can you sacrifice live animals. The
Second Amendment? No again, as any number of gun laws attest. One can find
reasonable exceptions to just about every constitutional principle.
But 43 years ago, trawling through the
penumbra and emanations of the Constitution, Justice Harry Blackmun found an
inviolable right that had somehow evaded the Founding Fathers: the right to
kill a child in utero—mere inches from being fully born, even—for any reason or
no reason. Read Roe v. Wade some time; you’ll see it’s a conclusion in
search of reasons, an exercise in “raw judicial power,” in the words of
dissenting Justice Byron White.
The legacy of that decision, and its less
well-known companion case Doe v. Bolton, is a 43-year flight from reason
and a society and political system distorted almost beyond recognition by the
contortions it takes to accommodate a horrendous “right.” As the late Chuck
Colson wrote, “The right to an abortion has proven to be a jealous god. In
exchange for sexual freedom, it demands everything else: cherished ideals,
right priorities, the First Amendment, and even decency. It insists that
nothing be spared in its defense.”
Jurisprudence Built on a Foundation of Lies
That state of affairs is not surprising
considering that both cases were based on lies. Norma McCorvey, the “Jane Roe” of Roe v. Wade,
had told her lawyers she’d been gang-raped, but she at least was seeking an
abortion. Sandra Cano,
the “Mary Doe” of Doe v. Bolton, wasn’t even seeking an abortion. She
was a homeless mother seeking a divorce and custody of her children.
Cano admits she was young, uneducated, and
naïve. “I never wanted an abortion; I just wanted my children back,” she said.
Her legal-aid attorney filed the case under false pretenses.
Cano said she could barely read, never mind understand, the court documents
they asked her to sign. In fact, in a sworn affidavit she said the signature on
one legal document claiming she wanted an abortion wasn’t even hers.
These weren’t the only lies. One of the
rationales cited in Roe was the supposed number of women dying from
illegal abortions, allegedly in the tens of thousands. But Bernard Nathanson, founder
of the Abortion Rights Action League, later said the numbers were simply made
up.
During the debate over partial-birth
abortion, abortion-rights people argued the procedure was rare—as if even one
case of puncturing the skull of a nearly born infant and sucking out its brains
would be acceptable. Imagine the outcry from the animal rights crowd should
someone do that to a baby seal. Ron Fitzsimmons, the executive director of the
National Coalition of Abortion Providers, admitted,
“We lied through our teeth.” The gruesome procedure was performed as often as a
thousand times a year.
How Roe Undermines Natural Rights
Aside from the lies, Roe has
distorted our legal system and the Constitution itself. In Hill v. Colorado, the Supreme Court upheld
a Colorado “bubble law” that forbids any person within 100 feet of a “health
care facility” to approach another person without that person’s consent in
order to pass a leaflet, display a sign, or engage in protest, education, or
counseling with that person.
Justice John Paul Stevens disingenuously
said the law was “content neutral.” It regulates, not speech, he wrote, but
merely “certain places where some speech may occur.” This is the same Justice
Stevens who thundered
in an Erie, Pennsylvania, case regulating the location of strip clubs that the
city of Erie had “silenced a message the dancers at [the strip club] want to
convey.”
Make no mistake—there is only one kind of
“health care facility” the Colorado law is meant to protect. Do you honestly
think someone picketing against amalgam filings at a dentist’s office will be
hauled in under this law? Moreover, imagine such a statute being written with
“place of business” instead of “health care facility.” The unions would go
berserk, and rightly so. The late Justice Antonin Scalia, in his Hill
dissent, called the Supreme Court an “ad hoc nullification machine that …
pushes aside whatever doctrines of constitutional law stand in the way of that
highly favored practice” of abortion.
Its defense of Roe has led the court
to deny the very foundation of the Constitution and Western law: natural
rights. Take this passage from a 1992 Supreme Court decision, Planned Parenthood v. Casey, which upheld Roe.
Justice Anthony Kennedy, writing for the majority, said, “At the heart of
liberty is the right to define one’s own concept of existence, of meaning, of
the universe, and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood were they formed under compulsion
by the State.”
Political philosopher Hadley Arkes
said “this is the kind of sentiment that would ordinarily find its place within
the better class of fortune cookies.” The purpose of law is not to compel any
particular belief about anything, never mind the meaning of the universe. Its
purpose is more grounded: to protect life, liberty, and the pursuit of
happiness, with the right to life being the foremost of these.
Roe Also
Politicized the Court
The chief distortion of Roe,
however, is the violence it has done to the process of filling seats on the
Supreme Court, turning “Bork” into a verb. The vicious smear campaigns against
nominees such as Robert Bork and Clarence Thomas are a direct result of the
tortured reasoning of Roe itself. The Supreme Court has gone from being
the least dangerous
branch of government to the one doing most violence to political comity because
it has removed from the people many choices that should be part of the
political process.
Nothing is more likely to induce political
rage than a law you have no power to change, and that is what Roe did to
the process of the people, through their political representatives, working
through sticky moral issues such as abortion policy. (The same is true of other
Supreme Court rulings, such as on gay marriage, that are beyond the scope of
this article.) Even if you are on the losing side of a political decision, you
can at least hope that it can be reversed it eventually through the same
political process.
For these reasons, we can hope that
President Donald Trump is able to appoint enough Supreme Court justices so that
they can overturn Roe and return the status quo ante, where the issue
can be decided by the people through the political representatives. It’s time
to slay the oppressive, false god of Roe v. Wade forever.
Tom Neven
served seven years in the Marine Corps as an infantry M60 machine-gunner and an
embassy guard. He is the author of "On the Frontline" and "Sir,
the Private Don’t Know! Sixteen Weeks of Hell on Parris Island." He has
written for The Washington Post, The Denver Post, Rocky Mountain News,
Time-Life, Writer’s Digest, and for blogs such as PJ Media, Boundless,
Acculturated, and First Things.
