Abortion: The Irrepressible Conflict
by Eric Rudolph
Roe v. Wade
Copyright 2008, Eric R. Rudolph
All rights reserved.
We have seen in the writings of spiritists, feminists, and socialists a tolerance for abortion was emerging in the middle of the nineteenth century. As these ideas evolved over the next one hundred years, a new regime of truth seized power in the West. Roe v Wade was not, as Blackmun claimed, a return to precedent, it came as a direct result of this ideological revolution.
Central to this new regime of truth, which I have labeled “egalitarianism,” was a desire to break unequivocally with Western tradition and Christianity. Christianity was the core of Western culture; it had provided the touchstone for all thought up to the 1800s. However far a thinker veered from Christian orthodoxy, he remained tethered to its core beliefs, one of which is the belief that the universe as a whole has a purpose and that humans exist as part of such an end-directed universe. Since the seventeenth century thinkers such as Thomas Hobbes and Michel de Montaigne were building systems of thought that challenged many of the theological assumptions of the Christian worldview. But they had always reserved a place for the Christian perspective, or at least treated it with respect. Then in the writings of Darwin, Marx, Mill, Feuerbach, Renan, Comte, a new universe was being charted, one without God, without organic culture, without meaning and purpose. Life was explained on strictly material terms. The universe had no purpose and was the result of random material processes. Humans, likewise, had no particular purpose and were merely the result of random forces of natural selection, said Darwin. Human culture was merely a superstructure built upon economic conditions, said Marx. And human society had evolved from a backward theological stage, to a less backward metaphysical stage, but had finally entered a modern scientific stage, said Comté. For those like Marx who combined egalitarian ideals with this materialist conception of the world, social reform took on a whole new meaning.
Christianity had taught freewill, that man had a unique soul and was free to control his environment through good and bad choices. Not true, said the egalitarian, man was the product of his environment. Actually, man is simply a material object in a world of material objects, all working according to determined patterns of cause and effect. Man is a slave to material forces, he has no soul and no free will. To solve social problems, one had to manipulate the material forces just so. Thus arrived the so-called social sciences, and social engineering. Poverty, crime, war-egalitarians believed that all these problems could be engineered out of society once and for all. These things were not a part of man’s fallen nature, as Christianity had argued. Man was a victim of material conditions. Change those conditions, and man would change.
The materialists said man was a biological machine, a computer programmed by his environment. The implications were that all men were basically the same. Each of our environments have either been tilted for or against us; making some rich, and others poor; some educated, other ignorant; some law abiding, others criminals. The systems of hierarchy that are seen in all societies everywhere, said the egalitarians, are the result of tilted material forces. And those who were blessed with a favorable tilt in the beginning have perpetuated those hierarchies in their own self-interest, thereby keeping most of humanity on a tilted playing field. Therefore, these hierarchies are responsible for all the social injustices in the world. To end social injustice, one had to level the material conditions. But in order to do this, the social engineers first had to remove the evil hand of the hierarchies that are keeping the unequal tilt. Egalitarianism thus organized itself as a revolutionary force intent on purging the bourgeois tilters.
While Christians waited for Christ’s kingdom of Heaven to come, the egalitarians cut loose of the Bible and sought to erect a literal kingdom of heaven on earth. Conservatives accepted the social inequalities as organic and the result of the unequal distribution of natural attributes such is will, talent and intelligence. Egalitarians viewed inequalities as the source of evil. Classical liberalism used reason to soften those organic inequalities with reform measures designed to protect the individual from the arbitrary abuse of the powerful and give him equality of opportunity. But egalitarians argued that even with equality of opportunity the ultimate distribution of wealth and power in society will still be based upon the unequal distribution of natural abilities. Meritocracy, they believed, was just aristocracy at its beginnings. The few with abilities soon monopolize wealth and power and pass it on to their heirs, creating another form of hierarchy. Therefore egalitarians set out to smash all inequalities and create equality of condition-the classless society.
Because hierarchies create and maintain high cultures, culture itself was the ultimate enemy. Egalitarians went after the cultural sources of inequality. Ancient wisdom teaches that human nature is inclined to selfishness and anti-social behavior, and is therefore in need of correction. Only through the correction of religion, education and law can the child become an adult in society. In Christian culture this selfish, corrupt human nature is attributed to Original Sin. Christianity sought to break the chains of Original Sin and correct the heart of the individual, hoping that once corrected he would carry the gospel ethic into his social life. Believing that human nature was basically good, egalitarians denied the need for correction. Material conditions made men bad or good. If a man was bad his conditions were bad. Make his conditions good and he would be good. Christians sought to change hearts; egalitarians sought to change socio-economic conditions. Take wealth from those who have it (“Haves”) and redistribute it to those who don’t (“Have Nots”), said Marx. When once society has an established “Fair” system where citizens contribute according to their abilities and receive according to their needs, utopia will be possible.
This new perspective has produced misery on a scale never before seen in history. The 50 million unborn children killed through abortion in America are just a fraction of the victims of this pernicious ideology. Without a doubt most of the people who tolerate abortion are not agenda-driven. Nevertheless, those who articulated the “pro-choice” position, who made it into law, and who now maintains the Roe regime are card-carrying egalitarians.
Slowly these egalitarian ideas captured the intelligentsia and from there filtered into the mainstream. “Educated” people in the early twentieth century came to believe in the inevitability of these ideas. “Progress” was a math formula figured out by Marx and Comte. Socio-economic forces were moving us to socialism. Those who accepted these ideas were “progressive.” Those who opposed them were “reactionary.” Just as the anti-abortion statutes reached their final form, the ideas that would ultimately dismantle them were rising to the surface.
In the nineteenth century tolerance for abortion was not expressed in public. Qualifications were emerging, though. Even though she condemned it, Elizabeth Cady Stanton said abortion was the result of “the degradation of women.” Depriving those husbands of children “who have made the strong-minded women. . .the target of jibes and jeers” was somehow just, she said.1 In public most feminists held views similar to Matilida J. Gage, who said “This crime of child murder, abortion, infanticide lies at the door of the male sex.”2 In the pages of their own newspapers, they were starting to express tolerance. Publically Victoria Woodhull said she wished abortion was unnecessary, but she “understood” why a woman would get one.
After the turn of the century, the New Women arrived. Margaret Sanger was typical of the new breed of iconoclast. In her Woman Rebel, Sanger gave perfect expression to the egalitarian position on abortion: “The attitude of America law and ‘public opinion’ on the subject of abortion is about 1,000 years behind Turkey. In Turkey abortion is not punished.”3 Sanger’s Comrade Victor Meric stated the position bluntly: “If a woman is to free herself effectively, she must make herself absolute mistress of her body. She must recognize her absolute right. . .to suppress the germ of life.”4
In keeping with the view that man was the slave of material forces, there was a new approach to social relief as well. Older homes such as Erring Women’s Refuge had emphasized Christian charity and individual transformation-change the person and she will change her environment. Margaret Sanger thought such institutions made “women a traitor to her class and aimed to reform her by means of a scrubbing brush or a club.”5 Material conditions caused social ills. Change those conditions and the social ills would disappear. Judge Ben Lindsey in his book The Companionate Marriage attacked the Christian “teaching about Original Sin and the Fall of Man.” He asked, “Why don’t you drop all that and commit yourself to the thesis that human beings are only too glad to be good if they can see their way to being so? What I say to young people is this: you are free agents. . . .The judge that must judge you is your heart and conscience. . .”6
“Social Worker” was the name given to the new class of reformers. One by one the old homes were closed down, or pushed out of the mainstream of relief work. In Cleveland, Ohio Mirian Morton was happy to see “professional social workers” replace the “benevolent old ladies, who had earlier distributed relief and spiritual salvation.”7 The social workers were morally neutral and saw the plight of the poor as primarily economic, not moral. Morality became utilitarian. By removing unwanted mouths to feed, egalitarians argued that abortion was one way to alleviate poverty. Abortion was now seen as compassionate and progressive, a means for poor women to escape a life of poverty. Abortion was good because that which cures poverty is good. And for the true progressives, abortion was a way of addressing female inequality in general.
Egalitarianism infected doctors as well. As educated “men of science,” they were expected to adopt the new progressive ethics. Just a generation earlier their fathers drove abortion out of the land. But they were “modern,” and had read Darwin, Marx, and Mill at college. They looked down on their fathers as “old fashioned,” and “unscientific.” Rather than using science as a tool, they saw themselves as the servants of science, science as interpreted by materialists such as Marx. Science was leading man somewhere, and they had to follow. Storer thought abortion a crime against God and Nature, the new breed had a different opinion. Dr. Henry Marcy argued in the Journal of the American Medical Association that the “product of early impregnation is of so little importance that abortion should not be established as a serious offense.”8 Dr. Klotz-Forest said, “Legally abortion is a crime. Honestly and scientifically it is not. One can only hope that good sense will triumph in the end, and that abortion performed, by an able practitioner in the best hygienic surroundings will soon come to be regarded as useful, necessary, and humane, even in cases in which the women requests it for no other reason than that she does not wish to have a child, that it is not her pleasure to become a mother.”9 The American Journal of Public Health applauded when the Soviet Union became the first country to legalize abortion in 1921: “legalized abortion is the only means for women’s liberation…”10 How modern.
The progressives acquired powerful allies in the media. Adolph Ochs purchased The New York Times in the late 1800s, beginning a reign of lies and distortion that has lasted down to the present day. In the hands of the Ochs and Sulzberger families, the Times has been the leading mouthpiece of leftwing culture distortion for over one hundred years. Louis John Jennings was out, Marxists were in. Never moving too fast to outpace the mainstream, the Times has gradually moved the public debate to the left.
The Hearst and McCormick papers were the last major dailies to treat abortion as a moral evil. The New York Times and Henry Luce’s Time Magazine started to portray it as a socio-economic issue. Abortion they argued was only problematic because it was illegal. The anti-abortion statutes drove abortion underground and into the hands of back alley butchers. Although morally objectionable, the women were not to blame. Poverty and ignorance caused abortions, and illegal practitioners made a bad situation worse. Put abortion in the hands of competent professionals and it would eliminate the ugly side of an ugly business. Until society has addressed the underlying socio-economic causes of abortion, society might as well provide a safe environment to do it in. After all, people were going to do it anyway. I’m sure you’ve heard this argument before. We’re just trying to be reasonable in an unreasonable situation, said the Times. They are past masters at this approach.
Fredrick Taussig’s book Abortion (1936) articulated the new perspective. His book was widely read and had considerable influence on liberal opinion. Medical, psychological, economic reasons trumpeted moral reasons. Using Marxist mathematics, Taussig estimated that there were “681,600 illegal abortions” annually, and at least “8,000 deaths due to botched procedures.”11
After the socialists seized control of the federal government in 1933, the Dr. Taussigs of America had more allies for the cause. In 1942 the New York Academy of Medicine held a conference on abortion, declaring that the unborn child “has not the self, the relationships, or the consciousness of his personality-save potentiality.”13 Dr. Sophia Kleegman said the only reason for the anti-abortion laws was “the dogma of one particular church.”14
By the time the Sherri Finkbine case came along in 1963, America had been softened up by leftwing propaganda for two decades. They were now ready to hear the argument for abortion, after being treated to the “hard case.” Mrs. Finkbine was a typical suburban housewife: twenty-nine years old, good looking, four children, a handsome husband, and perfectly waxed kitchen floors. But she had unwittingly taken the drug thalidomide, a sleeping pill, during her first trimester of pregnancy. Doctors had recently discovered that 20 percent of babies born to mothers who had taken the drug suffered severe physical deformities, including flipper-like arms.
Using the health of the mother exception in Arizona’s abortion statute, Mrs. Finkbine scheduled an abortion. But after the local papers got wind of the story, the hospital administrators got cold feet and refused to perform her procedure. So she went in search of a doctor who would. Like one of those Anna Nicole Smith sagas, the press followed her odyssey from one state to another, from one country to another. By then, the press was overwhelmingly in sympathy with Mrs. Finkbine. They covered her story with the hope of changing the existing laws. Bemoaning the prospect that she may be forced to give birth to a severely handicapped child, Planned Parenthood’s Alan Guttmacher opined that “the abortion laws have not kept pace with medicine.”15
Finally, Mrs. Finkbine was able to get an abortion in that bastion of progress, Sweden. Measuring the success of their campaign, the media took a Gallup Poll: 52 percent agreed that Finkbine had done the “right thing”; 32 percent were against the abortion; and 16 percent were too busy wondering who would win the World Series.16 Judges know that hard cases make bad law, but propagandists know that they make excellent polemic. Finkbine’s case showed that the hard case was an easy sell to the American people. It was just a matter of obfuscation to sell abortion-on-demand to the public under the banner of the “hard cases”-rape, incest, flipper-armed kids. Talk to any supporter of abortion and they’ll give you the hard case, when the fact of the matter is such cases account for only a small percentage of abortions.
Abortion was still in the hands of state legislatures. Sensing the winds of change blowing in from the Left, several states felt comfortable about legalizing abortion for the hard cases. Between 1966 and 1972 fourteen states changed their laws to allow abortion in cases where a doctor said the pregnancy posed a serious threat to a woman’s physical or mental health, when the child would be born with a grave physical or mental defect, or when pregnancy resulted from rape or incest. In 1970, four other states repealed all of their abortion statutes, legalizing abortion-on-demand. Abortion clinics sprouted up in large cities like New York and did a brisk business servicing the followers of the counterculture.
But most states in the American Heartland retained their abortion statutes. The Heartland was unprepared for Roe v Wade. Roe was the capstone on forty years of social engineering. All of this change was imposed from above; none was the result of actual grass roots efforts or organic change. Lacking effective leadership, Middle America was taken by surprise. They have been trying to get their bearings ever since. Actually these policies, which had reached the local level in the 50s, 60s, and 70s, have their roots all the way back to the Enlightenment. The elites had played with this poison for several generations. Now it was dispensed at the local level.
Using the pseudonym “Jane Roe”, Norma McCorvey brought a class action suit against the state of Texas (1970) for having refused her request for an abortion. McCorvey claimed to have been gang-raped, which later turned out to be a lie. But under the 1857 statute, abortions were permitted only to save the life of the mother. Not having a life threatening condition, McCorvey was refused an abortion. She decided to sue Texas. Her lawyer, Sarah Weddington, thought McCorvey’s case would make a good test for abortion-on-demand, so with the backing of leftwing groups, she prepared for trial.
The federal court in Dallas agreed with Roe. Texas then appealed to the Supreme Court, where it was argued two times, once in ’72, and finally in ’73. Chief Justice Rehnquist and Justice White dissented; the rest of the Court upheld Roe, thus overturning all the state anti-abortion statutes. Roe v Wade established abortion-on-demand as a Constitutional right, and touched off the most important conflict of our generation.
Using a pile of convoluted information to support his decision, Blackmun wrote for the majority. Blackmun was an Establishment judge. And like most Establishment judges of that generation, his heroes were former Justices Brandeis and Holmes. From his perspective, the Roe v Wade decision was delivered in the spirit of Holmes’ famous 1905 admonition that the Constitution “is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgments upon the questions whether statutes embodying them conflict with the Constitution of the United States.”17
Blackmun used this hollow quote to scare off the torch-bearing mob. Harry was saying that even though the majority out there in the Heartland might view the disposal of unwanted children as morally repugnant, America is a diverse nation and must accommodate people who regard unborn children as medical waste and impediments to female equality. It didn’t matter that the writers of Constitution would have found such an interpretation of their work as a gross perversion. To keep pace with progress rights had to be crafted and enlightened individuals such as himself were the only ones qualified for the job. Unlike those bigoted Crackers in the Heartland, Harry was progressive. He would deliver a decision inline with “the progressive spirit of the Constitution.” He would pull the Roe decision right out of thin air.
In the history of the Court no other decision was more arbitrary than Roe v Wade. Blackmun’s decision had no basis in common law, history, or the Constitution itself. It was pure invention. Holmes would have been proud. As noted earlier, Blackmun relied heavily on the Amicus brief of Cyril Means. Briefly again, this argument had the “state’s real concern in enacting criminal abortion laws to protect a woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.” Only secondarily were they concerned for the “potential” life of the child: “In assessing the state’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the state may assert interests beyond the protection of the pregnant women alone.”18 It must be remembered, said Blackmun, that “throughout the major portion of the nineteenth century, abortion was viewed with less disfavor than under most American statutes currently in effect.”19 Then a pack of greedy physicians, who were seeking to cut out the “irregular” competition, pressured the states to pass abortion laws. Overturning Texas’ abortion statute was a return to tradition, Harry insisted.
To ensure that greedy doctors and day before yesterday moralists never again forced women to have unwanted children, Blackmun decided to fabricate a new right for women, one impervious to meddling Cracker state legislatures. He called this new construct the “right of privacy.” Harry admitted what he was doing: “The Constitution does not mention any right of privacy.” Nevertheless, Blackmun believed the Ninth Amendment “broad enough to encompass a woman’s decision whether or not to terminate a pregnancy.” Letting his guard slip, Harry revealed his true egalitarian motives:
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 maybe 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.20
“In view of all this,” wrote Blackmun, “we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.” Although Harry wouldn’t let the states adopt a “theory of life,” that is exactly what he did, despite denying it. “We need not resolve when life begins, when those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus. . .”21 Roe explicitly adopts a theory of life, one that refuses to consider a fetus’ right to life and a state’s belief that such a right ought to be protected, as states in the Western world had been doing for a thousand years. Acknowledging that there were divergent beliefs about when life begins, Blackmun was not at all uncertain about giving a woman the power to destroy the life inside her, a power the law had never given a woman before. As Richard Epstein said, “It is simple fiat power that gives his (Blackmun) position its legal effect.”22 Elliot Silverstein, a supporter of abortion, put it even better: “If the Court really means, when it says it need not decide when life begins, that it need not recognize the State’s valid interest in instilling a respect for life, then Roe is, indeed, a dangerous precedent.”23 If as, Blackmun claimed, there was such confusion about when life begins, then why not leave such a matter to the Legislature to decide? And why adopt the three-trimester framework?
In bizarre fashion, Blackmun proceeded to formulate a construct for legal abortion that resembled the work of a city commissioner fashioning an ordinance:
(a) For the stage prior to approximately the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting the interest of the health of the mother, may, if it chooses, regulate the abortion procedure in a way that is reasonably related to maternal health.
(c) For the stage subsequent to viability, the state in promoting interests in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment for the life or health of the mother.24
Former Attorney General Archibald Cox pointed out that such a construct was a house of cards: “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child-birth and abortion, or new advances in providing for the separate existence of a fetus.”25
The three part formula was pure subterfuge. Knowing that the differences between a late term fetus and a newborn infant were negligible, Blackmun used his construct to distance himself from accusations of infanticide. He did this knowing that the construct’s supposed protection for late term fetuses was a charade. On the same day that Roe was decided, the Court ruled on another abortion case, Doe v Bolton. Doe and Roe, said Blackmun, should be “read together.”26 Blackmun had said that in the last of his three part formula the state could intervene to “regulate and even proscribe abortion,” except in those cases where it is necessary to preserve “the life or health of the mother.”27 Roe, however, didn’t define “health of the mother.” Doe v Bolton was designed to give this definition.
As it turns out the Court had a very Holmsian definition of “health”:
The medical judgment maybe exercised in light of all factors-physical, emotional, psychological, familial, and a women’s age-relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.28
Roe and Doe became the twin pillars of abortion-on-demand. These decisions made abortion untouchable before the twelfth week. After the twelfth week the states could impose some minor restrictions, but if a woman could find a doctor to say that carrying the unwanted child to term might threaten her physical, psychological, or financial “health,” abortion was legal right up to the last months before the birth of the child.
Two cases in the seventies strengthened the pillars. The Danforth decision (1976) brushed aside the third trimester distinction. Forbidding the states from using the third term division (24 weeks) for proscribing abortions, Danforth substituted “viability” as the only test for when states could restrict abortion. Like Blackmun’s definition of “health,” viability was vague and subjective. One physician may say one baby is viable, while another may deem the same child unviable. Finally, Colautti (1979) made it clear that viability was a matter for the mother and her physician to decide.
Today, abortion on demand is legal in every state in the Union. It kills approximately 1.5 million children annually. Currently, about 90 percent of abortions are done in the first trimester (12 weeks), using a vacuum aspirator. Second trimester abortions (12 to 24 weeks) account for 10 percent of the total. In the 70s saline injections into the uterus were preferred. Today, abortionists use a procedure called “Dilation and Extraction” (D & E): In this procedure, the abortionist applies a local anesthetics, dilates the cervix, and basically pulls out the fetus one piece at a time, breaking them off against the two rings of the cervix.
Just last year the Supreme Court upheld the Partial Birth Abortion Ban, which proscribes a type of heinous late term abortion. Even though the ban will cover only 10,000 of the 1.5 million abortions annually, it is the most significant pro-life victory in over thirty-five years of legislation and litigation. Until the ban hundreds of thousands of children met their deaths in the most horrible manner. Abortionists called the procedure “Intact D,” opponents of abortion call it Partial Birth Abortion. A nurse who formerly worked with Dr. Martin Haskell described the procedure before the Senate Judiciary Committee, as performed on a 26 ˝ week old child:
Dr. Haskell went in with the forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and arms-everything but the head. The doctor kept the head inside the birth canal. The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck a pair of scissors in the back of his head, and the baby’s arms jerked out, like a startled reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the hole, and sucked the baby’s brains out. Now the baby went completely limp. He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.29
Roe never pretended to be good law. It was pure fiat. Blackmun thought women needed the right of abortion, so he invented it. Franklin D. Roosevelt’s court-packing scheme was similar. In 1937 he tried to appoint six new justices to the Supreme Court for each sitting justice who was over seventy years of age. The Supreme Court, which consisted of primarily Republican appointees, had shredded Roosevelt’s First New Deal. Waiting for the justices to die was too constitutional for a progressive like FDR, so he proposed appointing a whole new slate of friendly justices to tack onto the existing Court. This, he hoped, would sway future decisions his way. To keep pace with progress the Constitution had to be rewritten without having to go through the hassle of the Amendment process. Roosevelt didn’t get away with his dictatorial scheme, Blackmun did.
Justices Rehnquist and White were dumbfounded by Roe. In their dissent they accused the majority of legislating from the bench:
The Court simply fashioned and announced a new Constitutional right for pregnant mothers, and with scarcely any reason or authority for its actions, invests that right with sufficient substance to override most existing state abortion statutes . . .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 the Court. The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. . .I can’t accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to states efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it.30
Even liberal legal scholars who are pro-abortion think that Roe was poorly decided. “What is frightening about Roe,” said John Ely, “is that this super protected right is not inferable from the language of the Constitution, the framer’s thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”31 Blackmun’s vague references about a right to privacy found not in one Amendment but in no less than five, proves that he really didn’t care whether it was in the Constitution or not. He said the right of privacy was recognized in a number of cases dealing with marriage, procreation, contraception, family relationships, child-rearing, and education. But he failed to mention that the state has always had a legitimate interest in regulating all these things through marriage laws, divorce laws, child protection and support laws, and mandatory education laws. Judge Richard Posner warns, “Roe v Wade raises the question whether we have a written Constitution, with the limitations thereby implied on the creation of new constitutional rights, or whether the Constitution is no more than a grant of discretion to the Supreme Court to mold public policy in accordance with the Justices’ own personal and shifting preferences.”32
The right to privacy doesn’t protect drug users, suicides, consensual incest, consensual sex between minors and adults, consensual cannibalism and human sacrifice, blood feuds and dueling; it doesn’t shield a person from conscription, taxes, or eminent domain. And as Joseph O’Meara correctly pointed out, “There is nothing private about abortion.” It occurs not at home in a bedroom between a pregnant women and her coat hanger. Roe was asking the court to create a special right for all women, and force the state to sanction, regulate, and protect an entire industry of abortionists, so women could exercise their sacred right. Not only this, the folks who gave us Roe v Wade believe that abortion is an affirmative right and the state thus has an obligation to provide abortions. Almost every lawsuit the pro-abortion lobby has brought since Roe has attempted to get taxpayer support for abortion. This is not about privacy. In their fevered brains, the state has a duty to give abortions to any women, or girl, who requests one but can’t afford the cost.
And making abortion dependent upon “viability” is indefensible in an age when science is pushing back the date of viability every year. Post-natal care has now made it possible for infants to survive outside the womb who would have died just a few years ago. In ten years time artificial wombs will make it possible to carry a child through most of gestation. Will those children be judged viable? And what about the millions who were judged non-viable and aborted simply for lack of a devise or procedure to care for them outside the womb? Pro-abortion Justice Sandra Day O’Connor was thinking about these same questions when she said that “Roe …is on a collision course with itself. . .it has no justification in law or logic.”33
The states have chipped away at the Roe and Doe pillars from various angles, but the pillars are still there. The legal structure of abortion has survived repeated challenges over the years. In Webster V. Reproductive Health Services the Supreme Court upheld a Missouri law that had a preamble which said “the life of each individual human begins at conception.” The law had two key provisions: “(1) prohibited the use of public employees and facilities to perform abortions; (2) when a doctor believes a woman is carrying a fetus of at least 20 weeks, he must determine with the latest tests whether it is viable or not.” The preamble, said the Court, was mere rhetoric and did not affect the core right to an abortion in a “concrete way.”34
The Court’s majority was moving to the right since Roe, and appeared to be willing to support abortion as an individual right, but was not prepared to fund it with federal taxpayer dollars. Reacting to the pro-abortion lobby’s attempts to get taxpayer funding for abortions for poor women, the Court said in DeShaney v Winnebago County Department of Social Services there was “nothing in the Constitution that required the state to enter or remain in the business of performing abortions.” Nor was there anything in the due process clause that conferred an “affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” Maher v Roe upheld a Connecticut law that said Medicaid recipients could receive money for child birth, but not for non-therapeutic abortions. In Harris v McRae, the Court upheld the most restrictive version of the Hyde Amendment, which refused to release federal funds under the Medicaid Program to reimburse the state for the cost of abortions, except for those cases where abortion was necessary to save “the life of the mother.” In this case the majority also upheld Missouri’s viability test and its prohibition of abortion after viability, finding Roe’s rigid trimester framework contrary to the Constitution’s “general principles.”
The important aspect of Harris was the Court’s upholding of Missouri’s prohibition on post-viability abortion. Viability, however, was still subjective and in the discretionary judgment of the physician. And in all of these cases “the essential holdings in Roe were upheld.” Justice Scalia, an opponent of Roe, voiced his frustration with this incremental approach. Writing the concurrence in part in the Harris case, he was disappointed that Roe itself couldn’t be reexamined and overturned: “I think it should be done, but would do it more explicitly. . . It appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v Wade, must be disassembled door-jam by door-jam, and never entirely brought down, no matter how wrong it is.”35
In the 1980’s the states used waiting periods and informed consent laws as tactics in the incremental approach. Planned Parenthood v Casey (1992) was the most important case to make it before the Court on these issues. Casey dealt with a Pennsylvania law that had five provisions. The Court focused on three in particular. The act required,
(1) a woman give her informed consent prior to an abortion, and be provided with certain information at least 24 hours before the abortion is performed; (2) the informed consent of one parent must be obtained for a minor to undergo an abortion, but a judicial bypass procedure is provided; (3) a married woman seeking an abortion must sign a statement indicating that she has notified her husband unless certain exceptions apply (for example, she is being abused by her husband). . . 36
It was the last provision in Casey that was controversial. The majority ruled that placing such a requirement on a woman past the age of consent placed an “undue burden” on her right to an abortion.37 Again, the core of Roe was upheld in Casey; however, the three trimester framework was rejected as unworkable.
Casey was significant because it was heard before the Court after a decade of appointments by so-called conservative presidents, Reagan and Bush. These two frauds aggressively courted social conservatives, hinting that a few more appointments to the Court would do the deed on Roe. But Reagan’s and Bush’s appointees-O’Connor, Kennedy, Souter-voted to strike down Pennsylvania’s spousal notification law and uphold Roe v Wade as an unchangeable precedent-stare decisis. Exasperated at this betrayal, the pro-life forces had to wait out the Clinton era before getting another shot at Court appointments.
Pro-lifers in the 1990s devised a new strategy, this one aimed at banning Partial Birth Abortion (Intact D). As described earlier, Partial Birth Abortion is nothing short of infanticide. By showing how the procedure is performed, conservatives received overwhelming support for a ban. The Marxist media were unable to blackout the issue. Only hard-bitten killers like Senator Diane Feinstein and the leaders of Planned Parenthood and NOW came out in defense of Partial Birth Abortion. The Republican controlled Congress passed a ban. In public, the leftist President Bill Clinton found it expedient to pay lip-service to the ban, but he would support it only if the lying health exception was attached. When Congress rightly refused to attach one, Clinton vetoed the bill.
The states were also moving against Partial Birth Abortion. After Nebraska passed a ban without a health exception, the issue came before the Supreme Court in Stenberg v Carhart (2000). In a close five to four vote the law was struck down because of its lack of a health exception.38
If you remember, it was the health exception dictated in Doe that nullified all attempts to restrict abortion after the twelfth week. On the surface, Blackmun’s three trimester framework and later the “viability” test allowed states to regulate and even proscribe abortions in the second and third trimesters. In reality, the health exception allowed woman to receive an abortion at any stage of gestation. No matter what law the states passed, if there was a health exception, the law was meaningless. A woman could walk into an abortion mill just weeks before giving birth and claim that the pregnancy was making her depressed, or costing her too much money and an abortion could be scheduled for a few days later. The only limitation was finding a qualified “physician” willing to carry out the murder.
Only after the election of George W. Bush in 2000 was a ban on Partial Birth Abortion feasible. Bush had used the same strategy as his father and Reagan before him, promising social conservatives that he would appoint “strict constructionist” judges to the bench, which is a code phrase for jurists who will interpret the Constitution as it was written. The strategy worked. He was elected and two justices came up for replacement: Rehnquist and O’Connor. Appointing Roberts and Alito in their places, Bush managed to remove one of the six votes (O’Connor) upholding the core of Roe. Now, of the five justices upholding Roe, one is a “swing” vote. This is Kennedy. While upholding the basic right of abortion, Kennedy has allowed the states to restrict it after the first trimester. He, for example, voted to support Nebraska’s ban on Partial Birth Abortion in Stenberg v. Carhart. With Kennedy’s vote and the new Bush appointees, it was now possible to reintroduce a Partial Birth Abortion Ban, minus the health of the mother exception.
After the defeat in Stenberg, Bush managed to push a Federal Partial Birth Abortion Ban through Congress. Like Nebraska’s ban, this one had no health exception attached. As expected the Marxist judges on the lower bench ruled the law unconstitutional, so the same issue was back before the Supreme Court seven years later in Gonzales v Carhart. Bush’s appointments paid off. With Alito sitting in O’Connor’s seat and Kennedy voting with the majority, the law was upheld five to four, giving pro-lifers their most significant victory in over thirty-five years of legislation and litigation.
The Partial Birth Abortion Ban doesn’t challenge Roe directly. By destroying the health exception, however, it theoretically opens the door for the states to pass more laws proscribing abortion down to “viability.” But upon closer examination, the Court’s decision in Gonzales makes it clear that banning any abortion that takes place inside the womb is not going to fly with the Court. Those pundits are fools who see in Gonzales the imminent demise of Roe v Wade. The law is purely cosmetic, meant to push the bloodier aspects of abortion back inside the womb. As Justice Ginsburg pointed out in her dissent, “The law saves not a single fetus from destruction, for it targets only a method of performing abortion.”39
The Partial Birth Abortion Ban punishes only those doctors who, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or in the case of a breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (b) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus. . . 40
In other words, unless a court can prove that an abortionist intentionally delivered any portion of the fetus’s body before killing him, there is no harm no foul. And the Attorney General explicitly stated he has no intention of extending the ban to cover abortions that are performed while the child is still in the mother’s womb, regardless of the stage of gestation: “In the litigation: the Attorney General doesn’t dispute the Act would impose an undue burden if it covered standard D & E.”41 And if the child should “accidentally” slip outside the birth canal during an abortion, the abortionist is not liable: “The Act requires a doctor to deliberately deliver the child to an anatomical landmark. Because a doctor performing a D & E will not face criminal liability if he or she delivers the fetus beyond the prohibited point by mistake, the Act cannot be described as a ‘trap for those who act in good faith.’”42 Under the provisions of the law, it is perfectly legal for an abortionist to kill a viable 26 week old fetus, as long as the killing takes place inside the womb:
In addition the Act’s prohibition only applies to the delivery of ‘a living fetus.’ If the intact D & E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.43
Ginsburg’s dissent points to the Act’s meaningless distinction, noting that there is no difference between killing a late term fetus inside the womb with a lethal injection, and killing an infant outside the womb with a pair of scissors:
Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant. But so too does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, or a fetus delivered through medical induction or caesarian.44
On the surface the Partial Birth Abortion Ban and Gonzales look like significant steps toward overturning Roe v. Wade; but underneath they are hollow meaningless bones that the Republican establishment has thrown to their social conservative supporters. Pro-lifers are mistaken if they believe the Ban and Gonzales signal a serious shift in the Court, one that will eventually lead to overturning Roe v. Wade. Gonzales makes it clear that Roe is safe in front of the Roberts Court. This is not because conservatives are still lacking one more vote. No, they are lacking the same number of votes as before. Alito and Roberts added nothing to the Roe equation. In their confirmation hearings, they held their abortion card close to their vest. Nevertheless, the smart money was betting that neither Alito nor Roberts would vote to overturn Roe. They were right.
Now that they sit on the bench for life, Alito and Roberts have nothing to fear in expressing their opinions on Roe. If they truly wanted Roe v Wade gone, the best way to effect that is to signal to the states to bring abortion cases before them. Scalia and Thomas have been doing that for years. In every major abortion case that has come before the Court, they have expressed their opinion that Roe should go. Gonzales v Carhart was no different. Thomas and Scalia concurred in part and dissented in part. Although concurring with the majority in upholding the Partial Birth Abortion Ban, they dissented, saying “The Court’s abortion jurisprudence, including Casey and Roe v Wade, has no basis in the Constitution.”45 Here was an opportunity for Alito and Roberts to sign onto Thomas and Scalia’s dissent and tell the country, especially the states, that they would overturn Roe if the issue came before the Court again. But they didn’t sign the dissent. So much for George W’s appointees.
This was a great disappointment for conservatives because Roe is the real target they've hunted for thirty-five years. But Roe is safe, unless Bush or the next President appoints three more Justices like Thomas and Scalia. With the election of Barack Obama and huge Democratic majorities in both houses of Congress, it's almost certain that no conservative judges will be confirmed for the next decade. Even on the off chance that a Republican president is elected in 2012, he or she, will be a decidedly more liberal Republican. The Republican Party establishment has tried for twenty years to cut its ties with social conservatives. They will most certainly redouble their efforts before the next presidential election. And what about the states? For Roe to go down, a state must first pass a law that explicitly proscribes abortions anytime after conception, health exception not included. Last year South Dakota attempted this very thing. But the egalitarians forced the law before a state referendum, where it went down in defeat. Believing the reason for the defeat was the law's lack of an exception for cases of rape and incest, prolifers in South Dakota prepared a new Initiative for the 2008 election. This one allowed abortions in cases of rape, incest, and to save the life of the mother. But the Initiative was voted down 55 percent to 45 percent. As South Dakota is one of the more conservative states, the defeat is a bad omen.
But let us imagine that Roberts and Alito vote against Roe. What then? Most Americans believe that abortion would then be completely outlawed. Not even close. Roe v. Wade prevented the states from deciding on the issue. If Roe was overturned tomorrow, abortion would return to the state legislatures. Based upon what happened in South Dakota, only a few states would move to outlaw abortion completely. Without Roe, abortion-on-demand would remain legal in most of the states. All these years, conservatives have been pleading with the Marxists to let them have one pocket of territory where abortions are not allowed-just one. That is the only thing Roe’s demise would accomplish.
In order to outlaw abortion nationwide, using constitutional methods, one of three things would need to happen: the Supreme Court would have to recognize a pre-natal right to life under the Fifth and Fourteenth Amendment; or Congress would have to pass a law banning all abortions; or the Constitution would have to be amended to protect unborn human life. Even under the most Republican of Congresses, the chances of either of these scenarios happening are remote.
This was shown clearly in the 2008 elections, when 72 percent of Coloradans voted against an initiative that would have defined the unborn child as a person. The initiative encapsulated the stated objective of the prolife movement, which is to eventually outlaw abortion nationwide by enacting an Amendment to the U. S. Constitution that affords pre-natal life the full protections of the Fifth and Fourteenth Amendments. But the major prolife organizations did not line up behind the Colorado initiative. They thought it was asking for too much too soon. We must first use the "soft-sell" to promote a "culture of life," they said. And eventually, after fifty years, the American people will come to support a personhood Amendment to the Constitution. But all the demographic-political trends are moving in the opposite direction. In fifty years, prolifers, if there are any left, won't even be able to get enough signatures to put a personhood initiative on a state ballot, let alone enact an Amendment to the U. S. Constitution.
Given all this, the Partial Birth Abortion Ban is best seen as the high water mark of the pro-life movement. Constitutional efforts to outlaw or limit abortion have come to an end. Unless a different strategy is devised, conservatives will gradually lose ground, until eventually they are pushed out of the political process entirely. But a new strategy requires a new perspective.
Strategically, conservatives have failed over the decades because they do not truly understand their opponents. And tactically, they have lost every conflict because they have allowed their opponents to set the agenda, thus placing themselves on the defensive. As any lawyer or general knows, he who sets the agenda and takes the initiative almost always wins. The reason conservatives don’t understand their opponents is because they have made a conscious choice not to. Retreat a little farther out, has been their strategy. The egalitarians are liars but they have never been shy about discussing their ideas or plans. The Court’s majority in Casey, for instance, were emphatic as to what was at stake. Roe, they said, was an essential pillar of America’s egalitarian society. An attack upon it was an attack upon their America:
To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would simply be to refuse to face the fact that for two decades of economic and social development, people have organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.46 [Emphasis Added]
If conservatives took this position to heart, they would understand that this is not just about abortion, or the constitutional process. They are up against an ideology, one that in the case of abortion, justifies this heinous practice so that women can achieve equality in society. But this twisted thinking affects every other aspect of society, as well, not just abortion. Going on and on with the personhood argument is not going to work. For years conservatives have fooled themselves into believing that the abortion debate is really just about whether or not the unborn child is a person. For years they have sought to convince the egalitarians to respect unborn life because life begins at conception. This will not work. Why? Because the true egalitarians already know that life begins at conception. They don’t care. Equality for women is more important to them than the lives of unborn children. To them 50 million deaths is a small price to pay in order to level the playing field. Laurence Tribe, probably the leading leftwing legal scholar in the country, put it this way:
Perhaps the Supreme Court’s opinion in Roe, by gratuitously insisting that the fetus cannot be deemed a ‘person,’ needlessly insulted and alienated those for whom the view that the fetus is a person represents a fundamental article of faith or bedrock personal commitment. The Court could instead have said: even if the fetus is a person, our Constitution forbids compelling a woman to carry it for nine months and become a mother.47 [Emphasis Added]
Chapter 2 References
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1. Elizabeth Cady Stanton, “Infanticide and Prostitution,” Revolution, I, No. 5 (Feb. 5, 1868) p. 65
2. Revolution, I, No. 14 (April 9, 1868) pp. 215-216
3. Dorothy Kelly, “Prevention and the Laws,” Women Rebel, (April 1914) p. 10
4. Victor Meric, “The First Right,” Women Rebel, (April 1914) p. 10
5. Ibid, p. 11
6. Ben B.Lindsey and Wainwright Evans, The Companionate Marriage, (New York: Boni and Liveright, 1927) p. 338
7. Marian Morton, “Seduced and Abandoned in an American City,” Journal of Urban History, vol. II (Aug. 1985) pp. 464-465
8. Henry Marcy, “Education as a Factor in the Prevention of Criminal Abortion and Illegitimacy,” Journal of the American Medical Association, vol. 47 (1906) p. 1889
9. Dorothy Kelly, “Prevention and the Law,” Women Rebel, (April 1914), p. 10
10. “Ten Years of Legalized Abortion in the Soviet Union,” American Journal of Public Health, (Sept. 1931) p. 1043
11. Olasky, Abortion Rites, p. 262
12. Time (March 16, 1936) p. 52
13. The Abortion Problem: Proceedings of the Conference Held Under the Auspices of the National Committee on Maternal Health, Inc., (Baltimore, Williams and Wilkins, 1944) pp.100-101
14. Ibid, pp. 50-52, 104
15. Arizona Republic, (Aug. 21, 1962) p. 1
16. The Gallup Poll: Public Opinion 1935-1971 (New York: Random House, 1972) p. 1984
17. Lochner v. New York, 198 U.S. 45, 74 (1905)
18. Roe v. Wade, 410 U.S. 113 1(1973)
22. Richard Epstein, “Substantive Due Process by Any Other Name,” in Supreme Court Review, 1973 n.t. 31 at 182
23. Elliot Silverstein, “From Comstockery Through Population Control,” North Carolina Law Journal, 39-40 (1974)
24. Roe v. Wade
25. Archibald Cox, The Role of the Supreme Court in American Government, p. 113-114
26. Doe v. Bolton, 410 U.S. 179, 191-193 (1973)
27. Roe v. Wade
28. Doe v. Bolton
29. H.R. Rep No. 108-158, p. 3 (2003)
30. Roe v. Wade
31. John Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” in 82 Yale Law Review, 921 n. 19 (1973)
32. Richard Posner, “The Uncertain Protection of Privacy by the Supreme Court,” in Supreme Court Review, p.173, 199
33. Webster v. Reproductive Health Services, 492 U.S. 511 (1989)
35. Harris v. McRae, 448 U.S. 438 (1980)
36. Planned Parenthood v. Casey, 505 U.S. 852 (1992)
38. Stenberg v. Carhart, 530 U.S. 922 (2000)
39. Gonzales v. Carhart, 550 U.S. (2007)
40. 18 U.S.C. 1531 (2000 ed. Supp.IV)
41. Gonzales v. Carhart
46. Planned Parenthood v. Casey
47. Lawrence Tribe, Abortion: The Clash of Absolutes, (New York: Norton, 1990) p. 135
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