One Of My Favorite Subjects...
For all our regular readers, no I’m not monopolizing the site. Marcie is busy, as she should be, with her studies. However, I do give her the Hat-Tip of the day as she sent me the links for me to be able to tackle one of my favorite judicial subjects. See, unlike Roberts, I wouldn’t shy away from this subject. (Actually, were I in his shoes right now I would because it would violate legal ethics to comment on this subject, and then have to rule on it.) For those completely lost, the subject is Roe v. Wade.
Now, a lot of people think I’m nuts for even touching this subject, however the fine legally-trained mind, albeit amateur as I have yet to graduate law school or take the Bar, that I possess loves to debate this topic. Not because I’m a sicko. Not because I’m a masochist. No, it’s because I can separate my personal feelings regarding this case from the legal side of this hot-button argument.
The LA Times yesterday put up a history of abortion from Roe to present day (cited later so people can see how far this has been taken on a mistake of jurisprudence.) The point of this exercise in Constitutional Law I’m about to hand out is that the decision was wrong. It was wrongly decided. It was wrongly interpreted. Everything regarding Roe was wrong. Why? I’m so glad you asked. For this, I will need a tad bit of help from the Framers.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
I cite the Tenth Amendment for the simple reason that at the time of Roe’s decision, almost thirty states had made the act of abortion illegal. From the 19th Century forward, the act of killing a fetus was prohibited. In 1973, the high court ruled opposite that moral tradition, which is one of the provisions that the court is supposed to look to. In Roe, they opted not to abide by the traditions of the nation, but rather their own personal preferences in a rush to act in an activist role to change a fundamental law of the nation.
The argument was based primarily on the issue of a woman’s right to choose, backed up by the encroaching right to privacy (doesn’t exist) that was established in Griswold. In Griswold, it was determined that we, as Americans, have an all-encompassing right to privacy. This extended the rights originally enumerated under the Fourth Amendment, and was the primary amendment that was cited in Roe. There were five amendments cited by it. Yet somehow, somewhere the lawyers representing Jane Roe. Those five were, as follows: The First, the Fourth, the Fifth, the Ninth, and the Fourteenth. Based on the lawyers interpretation of these amendments and precedents set by the courts.
The First Amendment has no bearing on the case. An abortion is not a "religious" right. Nor is it an exercise of the freedom of speech, or of the press, or an act of protest. It also isn’t a "redress of grievances. The Fourth Amendment has no merit in the case, other than through precedent. But each case is to be looked at on an individual basis. Roe is separate from Griswold, yet they’re connected through precedent. The court ruled in Griswold there was an all-encompassing right to privacy, however Roe should have been looked at a bit more clearly when this question regarding the amendment up.
The Fourth Amendment reads, as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now. The act of abortion does not satisfy a single condition within the Fourth Amendment. The federal government is not enacting a search of the woman, herself, nor are they seizing the child. There is no warrant involved, a there is really no probable cause that is known at the time by outside agents. Yet, somehow, somewhere the court found that right to privacy. Fine, if it is to be cited as "precedent," then so bee it. But that right does not even have the slightest to do with the Fourth Amendment as it pertains to Roe.
I cite the Fifth Amendment below, as many people only remember one provision within it. That being the protection against self-incrimination; "I plead the Fifth."
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
OK. Jane Roe was not answering a capital crime. Jane Roe, AKA Norma McCorvey, never had an abortion. Originally, she claimed she had become pregnant through a rape, which never occurred. None of the above provisions were fulfilled in the appeal to the Supreme Court, so I don’t see where the Fifth Amendment has anything to do with Roe.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment specifically states that no matter what order the amendments are in, no matter when they are ratified, the rights of the citizens are still safe. It doesn’t matter if the Thirteenth Amendment, which bans slavery, wasn’t enacted until the 1800’s. It is the law of the land now, and that law can’t be broken. We can’t start slavery back over unless some group of nuts wants to repeal the Thirteenth Amendment. Again, below, another amendment that has no merit in the case.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is the only part of the Fourteenth Amendment that was cited in the case. It’s the only one that could be cited as the other sections of the Amendment deal with public debt, and elected officials. The key piece I believe they were citing in the case was this: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This is the Equal Protection clause, and it simply states that our enumerated rights can’t be denied by the states. At the time of Roe, thirty states had enacted laws prohibiting abortion because the people in those states deemed it murder. Murder is not a right, nor is it a privilege. It’s a crime in this nation.
The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge.
He believed that doctors needed to have leeway to do medically necessary abortions. In the court's first private conference on the issue, he described Georgia's law as "a fine statute [that] strikes a balance that is fair."
Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation's abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right.
The above comes from the LA Times "history" of Roe v. Wade, and it shows what happens when activists get a swelled head. See, Blackmun liked the idea of giving the "leeway" to doctors they felt they needed. Saving the life of a mother by taking the child is a decision no one wants to be faced with, and a doctor shouldn’t have to be prosecuted for. But, a year later, Blackmun decided that the leeway should become a floodgate, to the tune of over 40 million children aborted since the day Roe became "the law of the land."
Both Burger and Blackmun stated that they didn’t believe the court gave women the right to "abortion on demand," however, the opposite is true, and pro-abortion forces have moved to protect this errant right as though it were a religious sacrament. Anything that is enacted to stop an abortion is immediately challenged in court. When the president signed the partial-birth abortion ban, NARAL lawyers marched into federal court to get an injunction; questioning the law’s constitutionality.
What is even more ironic, and less discussed is Doe v. Bolton. Doe was also a case regarding abortion, and in that case Blackmun wrote: "doctors may consider ‘all factors — physical, emotional, psychological, familial and the woman's age — relevant to the well-being of the patient.’" With this sort of reasoning, any abortion—at that point—was justified. In Roe, they believed abortion should be legal. But the precedent set in Doe gave the pro-abortion fanatics their abortion on demand.
Clerks from that time state that the only thing on the justices minds then was to find a way to get the abortion laws off the books in the other states. This is clear-cut proof that the justices on the high court—the majority of them—wanted to act as "super legislatures." Rather than allowing states to decide, over the natural course of time, they did an all-encompassing blow to state’s rights, and gave the nation a jurisprudential abomination.
At the court's private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were "health problems."
Blackmun voiced disdain for feminists who said women deserved control over their bodies. "There is no absolute right to do with one's body what you like," he said. But he agreed that the Texas law was extreme and said it did "not go far enough to protect doctors."
Again, the Times does a fine job of pointing out the activism plainly seated on the Supreme Court. Yes, their thinking was to get around the problems doctors may have in performing a necessary abortion. Medical technology then is not as good as it is now. A child doesn’t need to be carried to full term, and premature babies have a much better chance of living now than they did back then. A late-term abortion is no longer needed. Still, there are times where it may be necessary. According to medical statistics, less than three percent of abortions performed today are for the safety of the mother, or due to medical problems. The vast majority are on demand abortions, and usually at the request of someone who didn’t take precautions to avoid the pregnancy.
Interestingly enough, at the same time Roe was being worked on, the Supreme Court was also hearing a death penalty case. In 1972, the Supreme Court struck down the death penalty. They ruled that the state laws were far too arbitrary, but they left the decision open enough for the states to revise their laws. In 1976, the Supreme Court restored capital punishment. Again, the Times makes an interesting note or two issues in coinciding times.
Had abortion cases followed a similar course, the court would have required states to reform their laws to give more leeway to doctors and to pregnant women. But it would have also left states the power to prohibit abortions in some circumstances.
Blackmun didn’t agree with that in his final decision. His first draft, however, stopped short of declaring abortion a constitutionally-protected right. He stated in that draft that the Texas law gave doctors no leeway or guidance in when an abortion should be legal. Under pressure from his colleagues to strengthen the language, and from Burger to delay the opinion until the fall, when he hoped a 5-4 majority would endorse his much more lax first draft, Blackmun acceded to the delay.
Big mistake. When Blackmun returned from his time off, the draft had gotten much longer, and relied little on Constitutional Law. It cited the history of abortion, but was thoroughly vague on the notion of when an abortion should be performed. That decision is what we have today, and it’s a mess. The court rarely relies on the precedent set by Roe. In Casey, Justice Scalia penned one of the most caustic, castigating opinions when he chastised the court for completely tossing aside the precedents set, and refusing to revisit Roe to straighten it out.
The simple fact of the matter is that based on the arguments in Roe, it has no merit. There isn’t an ounce of serious jurisprudence in the entire decision. The court didn’t rely on Constitutional Law. The court relied on one man who had a great deal to say, and injected plenty of rhetoric, but didn’t address the issue properly. There is no support for abortion anywhere within the Constitution. Blackmun showed his incompetence in the writing of the opinion. The court has further showed its ineptitude by not revisiting it. And it all comes from a group of rogues in black robes dead set to overturn a law they disagreed with.
Publius II
For all our regular readers, no I’m not monopolizing the site. Marcie is busy, as she should be, with her studies. However, I do give her the Hat-Tip of the day as she sent me the links for me to be able to tackle one of my favorite judicial subjects. See, unlike Roberts, I wouldn’t shy away from this subject. (Actually, were I in his shoes right now I would because it would violate legal ethics to comment on this subject, and then have to rule on it.) For those completely lost, the subject is Roe v. Wade.
Now, a lot of people think I’m nuts for even touching this subject, however the fine legally-trained mind, albeit amateur as I have yet to graduate law school or take the Bar, that I possess loves to debate this topic. Not because I’m a sicko. Not because I’m a masochist. No, it’s because I can separate my personal feelings regarding this case from the legal side of this hot-button argument.
The LA Times yesterday put up a history of abortion from Roe to present day (cited later so people can see how far this has been taken on a mistake of jurisprudence.) The point of this exercise in Constitutional Law I’m about to hand out is that the decision was wrong. It was wrongly decided. It was wrongly interpreted. Everything regarding Roe was wrong. Why? I’m so glad you asked. For this, I will need a tad bit of help from the Framers.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
I cite the Tenth Amendment for the simple reason that at the time of Roe’s decision, almost thirty states had made the act of abortion illegal. From the 19th Century forward, the act of killing a fetus was prohibited. In 1973, the high court ruled opposite that moral tradition, which is one of the provisions that the court is supposed to look to. In Roe, they opted not to abide by the traditions of the nation, but rather their own personal preferences in a rush to act in an activist role to change a fundamental law of the nation.
The argument was based primarily on the issue of a woman’s right to choose, backed up by the encroaching right to privacy (doesn’t exist) that was established in Griswold. In Griswold, it was determined that we, as Americans, have an all-encompassing right to privacy. This extended the rights originally enumerated under the Fourth Amendment, and was the primary amendment that was cited in Roe. There were five amendments cited by it. Yet somehow, somewhere the lawyers representing Jane Roe. Those five were, as follows: The First, the Fourth, the Fifth, the Ninth, and the Fourteenth. Based on the lawyers interpretation of these amendments and precedents set by the courts.
The First Amendment has no bearing on the case. An abortion is not a "religious" right. Nor is it an exercise of the freedom of speech, or of the press, or an act of protest. It also isn’t a "redress of grievances. The Fourth Amendment has no merit in the case, other than through precedent. But each case is to be looked at on an individual basis. Roe is separate from Griswold, yet they’re connected through precedent. The court ruled in Griswold there was an all-encompassing right to privacy, however Roe should have been looked at a bit more clearly when this question regarding the amendment up.
The Fourth Amendment reads, as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now. The act of abortion does not satisfy a single condition within the Fourth Amendment. The federal government is not enacting a search of the woman, herself, nor are they seizing the child. There is no warrant involved, a there is really no probable cause that is known at the time by outside agents. Yet, somehow, somewhere the court found that right to privacy. Fine, if it is to be cited as "precedent," then so bee it. But that right does not even have the slightest to do with the Fourth Amendment as it pertains to Roe.
I cite the Fifth Amendment below, as many people only remember one provision within it. That being the protection against self-incrimination; "I plead the Fifth."
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
OK. Jane Roe was not answering a capital crime. Jane Roe, AKA Norma McCorvey, never had an abortion. Originally, she claimed she had become pregnant through a rape, which never occurred. None of the above provisions were fulfilled in the appeal to the Supreme Court, so I don’t see where the Fifth Amendment has anything to do with Roe.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment specifically states that no matter what order the amendments are in, no matter when they are ratified, the rights of the citizens are still safe. It doesn’t matter if the Thirteenth Amendment, which bans slavery, wasn’t enacted until the 1800’s. It is the law of the land now, and that law can’t be broken. We can’t start slavery back over unless some group of nuts wants to repeal the Thirteenth Amendment. Again, below, another amendment that has no merit in the case.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is the only part of the Fourteenth Amendment that was cited in the case. It’s the only one that could be cited as the other sections of the Amendment deal with public debt, and elected officials. The key piece I believe they were citing in the case was this: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This is the Equal Protection clause, and it simply states that our enumerated rights can’t be denied by the states. At the time of Roe, thirty states had enacted laws prohibiting abortion because the people in those states deemed it murder. Murder is not a right, nor is it a privilege. It’s a crime in this nation.
The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge.
He believed that doctors needed to have leeway to do medically necessary abortions. In the court's first private conference on the issue, he described Georgia's law as "a fine statute [that] strikes a balance that is fair."
Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation's abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right.
The above comes from the LA Times "history" of Roe v. Wade, and it shows what happens when activists get a swelled head. See, Blackmun liked the idea of giving the "leeway" to doctors they felt they needed. Saving the life of a mother by taking the child is a decision no one wants to be faced with, and a doctor shouldn’t have to be prosecuted for. But, a year later, Blackmun decided that the leeway should become a floodgate, to the tune of over 40 million children aborted since the day Roe became "the law of the land."
Both Burger and Blackmun stated that they didn’t believe the court gave women the right to "abortion on demand," however, the opposite is true, and pro-abortion forces have moved to protect this errant right as though it were a religious sacrament. Anything that is enacted to stop an abortion is immediately challenged in court. When the president signed the partial-birth abortion ban, NARAL lawyers marched into federal court to get an injunction; questioning the law’s constitutionality.
What is even more ironic, and less discussed is Doe v. Bolton. Doe was also a case regarding abortion, and in that case Blackmun wrote: "doctors may consider ‘all factors — physical, emotional, psychological, familial and the woman's age — relevant to the well-being of the patient.’" With this sort of reasoning, any abortion—at that point—was justified. In Roe, they believed abortion should be legal. But the precedent set in Doe gave the pro-abortion fanatics their abortion on demand.
Clerks from that time state that the only thing on the justices minds then was to find a way to get the abortion laws off the books in the other states. This is clear-cut proof that the justices on the high court—the majority of them—wanted to act as "super legislatures." Rather than allowing states to decide, over the natural course of time, they did an all-encompassing blow to state’s rights, and gave the nation a jurisprudential abomination.
At the court's private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were "health problems."
Blackmun voiced disdain for feminists who said women deserved control over their bodies. "There is no absolute right to do with one's body what you like," he said. But he agreed that the Texas law was extreme and said it did "not go far enough to protect doctors."
Again, the Times does a fine job of pointing out the activism plainly seated on the Supreme Court. Yes, their thinking was to get around the problems doctors may have in performing a necessary abortion. Medical technology then is not as good as it is now. A child doesn’t need to be carried to full term, and premature babies have a much better chance of living now than they did back then. A late-term abortion is no longer needed. Still, there are times where it may be necessary. According to medical statistics, less than three percent of abortions performed today are for the safety of the mother, or due to medical problems. The vast majority are on demand abortions, and usually at the request of someone who didn’t take precautions to avoid the pregnancy.
Interestingly enough, at the same time Roe was being worked on, the Supreme Court was also hearing a death penalty case. In 1972, the Supreme Court struck down the death penalty. They ruled that the state laws were far too arbitrary, but they left the decision open enough for the states to revise their laws. In 1976, the Supreme Court restored capital punishment. Again, the Times makes an interesting note or two issues in coinciding times.
Had abortion cases followed a similar course, the court would have required states to reform their laws to give more leeway to doctors and to pregnant women. But it would have also left states the power to prohibit abortions in some circumstances.
Blackmun didn’t agree with that in his final decision. His first draft, however, stopped short of declaring abortion a constitutionally-protected right. He stated in that draft that the Texas law gave doctors no leeway or guidance in when an abortion should be legal. Under pressure from his colleagues to strengthen the language, and from Burger to delay the opinion until the fall, when he hoped a 5-4 majority would endorse his much more lax first draft, Blackmun acceded to the delay.
Big mistake. When Blackmun returned from his time off, the draft had gotten much longer, and relied little on Constitutional Law. It cited the history of abortion, but was thoroughly vague on the notion of when an abortion should be performed. That decision is what we have today, and it’s a mess. The court rarely relies on the precedent set by Roe. In Casey, Justice Scalia penned one of the most caustic, castigating opinions when he chastised the court for completely tossing aside the precedents set, and refusing to revisit Roe to straighten it out.
The simple fact of the matter is that based on the arguments in Roe, it has no merit. There isn’t an ounce of serious jurisprudence in the entire decision. The court didn’t rely on Constitutional Law. The court relied on one man who had a great deal to say, and injected plenty of rhetoric, but didn’t address the issue properly. There is no support for abortion anywhere within the Constitution. Blackmun showed his incompetence in the writing of the opinion. The court has further showed its ineptitude by not revisiting it. And it all comes from a group of rogues in black robes dead set to overturn a law they disagreed with.
Publius II
posted by Syd And Vaughn | 12:40 PM
1 Comments:
Exactly! I think RvW and DvB need to be overturned and the issue needs to go back to the legislatures, where it belongs!
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