{"id":3445,"date":"2011-05-31T10:49:22","date_gmt":"2011-05-31T14:49:22","guid":{"rendered":"http:\/\/liveaction.org\/blog\/?p=3445"},"modified":"2016-12-12T23:44:57","modified_gmt":"2016-12-13T04:44:57","slug":"the-case-against-roe-v-wade-and-planned-parenthood-v-casey","status":"publish","type":"post","link":"https:\/\/archive.liveaction.org\/news\/the-case-against-roe-v-wade-and-planned-parenthood-v-casey\/","title":{"rendered":"The case against Roe v. Wade and Planned Parenthood v. Casey"},"content":{"rendered":"
<\/div>

ROE v. WADE<\/strong><\/p>\n

On January 22, 1973, the Supreme Court handed down its decision in Roe<\/em> v. Wade<\/em><\/a>. That same day, the Court also decided Doe<\/em> v. Bolton<\/em><\/a>. In Roe<\/em>, the Court struck down a Texas abortion law. In Doe<\/em>, the Court threw out the restrictions on abortion in a more liberal Georgia law. The combined result overturned the laws that restricted abortion in every state.<\/p>\n

In Roe<\/em>, the Supreme Court adopted a trimester framework for state regulation of abortion. The Court held: in the first trimester of pregnancy, states may not regulate abortion; in the second trimester, states may regulate abortion only in ways related to protecting the mother\u2019s health; and in the \"\"third trimester, states may \u201cregulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.\u201d But the language that seemed to allow a third trimester ban on abortion was deceptive, because in Doe<\/em>, the Court gave \u201chealth\u201d such a broad definition that states have been prevented from successfully imposing bans on abortion, including late-term abortions.<\/p>\n

The Supreme Court ruled that a restriction on abortion is a violation of the Due Process Clause of the Fourteenth Amendment, which protects the right to privacy. Delivering the Court\u2019s opinion in Roe<\/em>, Justice Blackmun wrote, \u201cThis right of privacy \u2026 founded in the Fourteenth Amendment\u2019s concept of personal liberty and restrictions upon state action \u2026 is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.\u201d<\/p>\n

Even pro-abortion proponents admit that Roe<\/em> is intellectually indefensible. Edward Lazarus<\/a>, a former clerk to Blackmun, wrote, \u201cWhat, exactly, is the problem with Roe<\/em>? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent.\u201d<\/p>\n

\"Justice

Justice Blackmun<\/p><\/div>\n

Blackmun claimed that a fetus isn\u2019t a person within the language and meaning of the Fourteenth Amendment. He noted that \u201cthe Constitution does not define \u2018person\u2019 in so many words.\u201d The word \u201chas application only postnatally.\u201d He observed that state laws restricting abortion \u201care not of ancient or even of common-law origin.\u201d The laws derive from changes \u201cin the latter half of the nineteenth century.\u201d So, the word person as used in the Fourteenth Amendment \u201cdoes not include the unborn.\u201d<\/p>\n

Each of these arguments falls apart under scrutiny. First, the Constitution doesn\u2019t define person, but the Constitution doesn\u2019t define privacy either. The Supreme Court applied a double standard in Roe<\/em>, arbitrarily giving the word person a narrow definition and the word privacy a broad definition in order to rationalize its decision to legalize abortion-on-demand. Second, if a fetus isn\u2019t a person because the provisions of the Constitution don\u2019t apply to a fetus, then infants aren\u2019t persons either, because the provisions also don\u2019t apply to infants. Or adolescents in some instances. Third, it\u2019s irrelevant if state abortion laws were less restrictive in the past. Many laws were less restrictive in the past. And it\u2019s irrelevant if state abortion laws originate from statutes not common-law. Many laws originate from statutes. Fourth, when the Fourteenth Amendment was adopted in 1868, abortion was already restricted by at least 36 laws<\/a> enacted by state or territorial legislatures, including the very Texas law the Supreme Court struck down in Roe<\/em>. Or in other words, state or territorial laws restricting abortion were already recognized when the Fourteenth Amendment was adopted: the Amendment wasn\u2019t intended to overturn laws restricting abortion. Clearly, the Fourteenth Amendment has always included the \u201cunborn\u201d as \u201cpersons\u201d entitled to Constitutional protection.<\/p>\n

Despite the evidence, Blackmun ruled otherwise. Further, he claimed the state laws that restricted abortion were inconsistent with the position that a fetus is entitled to Fourteenth Amendment protection as a person. He challenged three features of the state laws: the exceptions allowing for abortion to save the mother\u2019s life; the lack of penalties for the woman with respect to an abortion; and the difference in penalties for abortion compared to murder. If the fetus is a person, he argued, the state laws shouldn\u2019t contain these features.<\/p>\n

Blackmun overlooked the obvious. First, the Supreme Court accepts that the Fourteenth Amendment protects the right to life of an adult while also accepting that a right to take the life of an adult in self-defense exists. The same principle applies to a mother if the fetus is posing an imminent, physical threat to her life. Abortion laws, including the Texas law, simply recognized this accepted principle. Second, the lack of penalties for a pregnant woman reflect the widely-held view that a pregnant woman is also a victim of those who are willing to perform abortions and take advantage of her vulnerable situation. Third, the penalty for killing an infant in some states is also less than the penalty for murder, but the Supreme Court hasn\u2019t legalized infanticide.<\/p>\n

After deciding that a fetus isn\u2019t a person, Blackmun dodged the main issue of Roe<\/em> by claiming, \u201cWe need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man\u2019s knowledge, is not in a position to speculate as to the answer.\u201d<\/p>\n

What Blackmun didn\u2019t disclose was that the Supreme Court knew<\/em> the answer. The Court deliberately ignored the facts and misled the public. First, the question of when human life begins is neither one of philosophy nor theology; the question is one of science. Second, the medical community had already arrived at the consensus that human life begins at conception. In October 1971, a group of medical experts filed a brief of amicus curiae<\/a> (advice to a court from a person or persons not a party to the case) to the Supreme Court. The brief showed conclusively that science (embryology, fetology, genetics, perinatology, all of biology) establishes that human life begins at conception. And not a single person or group refuted the brief.<\/p>\n

Instead of reviewing the scientific facts, though, Blackmun undertook perhaps the most disingenuous endeavor of any Supreme Court Justice ever when delivering an opinion. He used nearly 4,000 words to review the history of human thought, informing the public that, among other things, the ancient Greeks and Romans didn\u2019t offer much opposition to abortion. Blackmun failed to mention that, while permitting abortion, the ancient Greeks and Romans also engaged in human sacrifices, but in his defense, he probably wasn\u2019t implying that we should also permit that practice today. Just abortion.<\/p>\n

Because a fetus, Blackmun decided, is merely a \u201cpotential life.\u201d But, while the states can\u2019t override a woman\u2019s \u201cright to terminate her pregnancy,\u201d the states have an \u201cimportant and legitimate interest\u201d in protecting the potential life, he ruled. This interest reaches a \u201ccompelling\u201d point at viability, which is when \u201cthe fetus then presumably has the capability of meaningful life outside the mother\u2019s womb.\u201d<\/p>\n

Blackmun\u2019s argument is illogical and unjustifiable. A fetus inside the womb and an infant outside the womb are both still completely dependent on others for survival. The claim that one has the capability of meaningful life and the other doesn\u2019t has no medical or legal basis.<\/p>\n

In summary, Blackburn concluded that \u201cthe abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.\u201d Wrong. Abortion \u201cin all its aspects\u201d is the intentional killing of innocent human life, which isn\u2019t a medical decision. And responsibility for it rests with the government, not the physician.<\/p>\n

PLANNED PARENTHOOD v. CASEY<\/strong><\/p>\n

In Planned Parenthood<\/em> v. Casey<\/em><\/a>, the Supreme Court considered a Pennsylvania law that imposed regulations on abortion. The law included certain information requirements, a parental consent requirement, a judicial bypass procedure for parental consent, a husband notification requirement, notification exceptions, a medical emergency definition, and reporting requirements for abortion providers. On June 29, 1992, the Court\u2019s opinion was delivered by Justice O\u2019Connor, Justice Kennedy, and Justice Souter, joined in parts by Justice Stevens and Justice Blackmun.<\/p>\n

While Roe<\/em> v. Wade<\/em> wasn\u2019t directly connected to the Pennsylvania law, which didn\u2019t prohibit abortion, the Supreme Court ruled that \u201cRoe<\/em>\u2019s essential holding be retained and reaffirmed.\u201d<\/p>\n

The Court noted, \u201cLiberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman\u2019s right to terminate her pregnancy in its early stages, Roe<\/em> v. Wade<\/em>, 410 U.S. 113 (1973), that definition of liberty is still questioned.\u201d But it\u2019s the Court\u2019s definition, or lack of a definition, for human life, and the Court\u2019s refusal to protect human life, that\u2019s still questioned. And the illogical, unjustifiable arguments the Court made attempting to justify its holding in Roe<\/em> serve only to intensify the opposition.<\/p>\n

Defending its decision in Roe<\/em>, the Supreme Court argued that \u201cthe adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual\u2019s liberty and the demands of organized society.\u201d<\/p>\n

But as Justice Scalia noted, in dissent, the Court didn\u2019t \u201ccontend that Roe<\/em> v. Wade<\/em> was a correct application of \u2018reasoned judgment\u2019; merely that it must be followed, because of stare decisis [the legal principle of following precedent].\u201d And once again, the Court misrepresented the issue, because it\u2019s life, and not the demands of organized society, for which boundaries with individual liberty must be determined.<\/p>\n

The Court argued, \u201cConstitutional protection of the woman\u2019s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall \u2018deprive any person of life, liberty, or property, without due process of law.\u2019 The controlling word in the cases before us is \u2018liberty.\u2019\u201d Actually, no. The controlling words are \u201clife\u201d and \u201cliberty.\u201d<\/p>\n

Continuing with the liberty argument, the Court claimed, \u201cOur obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter.\u201d<\/p>\n

First, the Court\u2019s obligation is also to define life for all, an obligation the Court failed to fulfill. Second, the Court masterfully slipped morality and philosophy into the issue to avoid facing the facts: the scientific facts that establish a human fetus is a human life, and the legal facts that show a fetus is a person entitled to Fourteenth Amendment protection.<\/p>\n

On the defensive, the Court escaped into an ideological fantasy world. \u201cAt the heart of liberty is the right to define one\u2019s own concept of existence, of meaning, of the universe, and of the mystery of human life,\u201d the Court claimed. \u201cBeliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.\u201d<\/p>\n

Again, the Constitution protects life as well as liberty. How can the Supreme Court uphold the Constitution and protect life after it has given away the \u201cright to define\u201d life? But that was the whole point.<\/p>\n

The Court then alleged that by restricting abortion, the states were imposing their \u201cown vision of the woman\u2019s role\u201d in society. Questioning others\u2019 motives is a favorite tactic of pro-abortion proponents. The allegation, though, is unfounded. A state restricts abortion to protect life.<\/p>\n

After considerable effort spent evading the main issue of Roe<\/em>, life, the Court restated, \u201cApplication of the doctrine of stare decisis confirms that Roe<\/em>\u2019s essential holding should be reaffirmed.\u201d But as Chief Justice Rehnquist noted, in dissent, the Court didn\u2019t claim that Roe<\/em> was a correct interpretation of the Constitution. And the doctrine of stare decisis doesn\u2019t require that a new case adopt the same incorrect interpretation of the Constitution as the original case.<\/p>\n

The Court added, \u201cAlthough Roe<\/em> has engendered opposition, it has in no sense proven unworkable.\u201d This is the one point the Court made in either Casey<\/em> or Roe<\/em> that actually was true. But while it was true at the time Casey<\/em> was decided in 1992, it\u2019s not true now. In the first half of 2011 alone, hundreds of new laws<\/a> restricting abortion, dozens in direct conflict with Roe<\/em>, have been introduced in state legislatures, and many have been passed.<\/p>\n

Next, the Court tried again to justify its decision to follow precedent, resorting to a flimsy reliance argument, speculating that \u201cfor two decades of economic and social developments, [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.\u201d And, \u201cThe 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.\u201d<\/p>\n

While pro-abortion proponents like to claim that all women, or half of the population, would be adversely impacted by overruling Roe<\/em>, the reality is that, at most, only 25%<\/a> of the population is female and in childbearing years, and of that group, approximately 60%<\/a> believe abortion should be illegal in all circumstances or legal in only a few circumstances. And the suggestion that women owe their current success in society to abortion as opposed to their determination, hard work, and skill is highly suspect.<\/p>\n

Chief Justice Rehnquist exposed the error of upholding a decision on the grounds of reliance. He wrote that \u201cat various points in the past, the same could have been said about this Court\u2019s erroneous [decision] that the Constitution allowed \u2018separate but equal\u2019 treatment of minorities.\u201d He concluded that \u201cthe \u2018separate but equal\u2019 doctrine lasted 58 years\u201d\u00a0 but \u201cthe simple fact that a generation or more had grown used to [that] major [decision] did not prevent the Court from correcting its [error] in [that case]\u201d and it shouldn\u2019t prevent the Court \u201cfrom correctly interpreting the Constitution here.\u201d But it did.<\/p>\n

The Court\u2019s contempt for the truth was striking. Since 1973, the Court had refused to overrule Roe<\/em>\u2019s essential holding, thus preventing any subsequent constitutional developments to Roe<\/em>\u2019s central rule. Then in 1992, when deciding Casey<\/em>, the Court had the gall to rule that Roe<\/em> wasn\u2019t in jeopardy because subsequent constitutional developments hadn\u2019t disturbed or threatened to diminish the liberty recognized in Roe<\/em>.<\/p>\n

The Court explained, \u201cNo change in Roe<\/em>\u2019s factual underpinning has left its central holding obsolete, and none supports an argument for its overruling.\u201d But the Court in Roe<\/em> deliberately ignored the scientific facts that establish human life begins at conception. Roe<\/em>\u2019s \u201cfactual underpinning\u201d isn\u2019t factual. Roe<\/em> was constructed on errors in reasoning, false claims, deception, and the deliberate omission of facts; facts that prove Roe<\/em>\u2019s central holding is invalid.<\/p>\n

\"20

20 Week Human Fetus<\/p><\/div>\n

The Court then went from defensive to desperate, asserting, \u201cA decision to overrule Roe<\/em>\u2019s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court\u2019s legitimacy and to the Nation\u2019s commitment to the rule of law.\u201d The existing circumstances were the public opposition to Roe<\/em>, and the \u201cefforts to overturn it and to thwart its implementation.\u201d Overruling Roe<\/em>\u2019s central holding, therefore, would appear to be \u201ca surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority.\u201d The country\u2019s \u201closs of confidence\u201d in the Court would be underscored if the Court failed \u201cto keep faith with those who support the decision at a cost to themselves.\u201d<\/p>\n

The Court insisted that \u201cerror\u201d wasn\u2019t enough of a reason to overrule Roe<\/em>, because of the \u201cdamage\u201d overruling would cause. But the damage caused by not overruling is over a million innocent human lives killed each year. And it\u2019s stubbornly upholding Roe<\/em> with illogical, unjustifiable excuses that erodes the Court\u2019s legitimacy and the Nation\u2019s commitment to the rule of law.<\/p>\n

In a display of extreme arrogance, the Court then declared, \u201cWhere, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe<\/em> and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court\u2019s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.\u201d<\/p>\n

The Court dictatorially assumed the authority to call an end to political debate. The Court just couldn\u2019t accept that, despite its opinion in Roe<\/em>, the pro-life movement wouldn\u2019t accept its interpretation of the Constitution and go away.<\/p>\n

Finally, after lecturing about the necessity of following precedent to protect the Court\u2019s legitimacy, the Court then abandoned precedent, rejecting Roe\u2019<\/em>s trimester framework for evaluating state regulation of abortion, and\u00a0used the undue burden standard. The Court ruled, \u201cAn undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.\u201d<\/p>\n

THE SUPREME COURT<\/strong><\/p>\n

Roe<\/em> v. Wade<\/em> and Planned Parenthood<\/em> v. Casey<\/em> both will be reversed. On what grounds, to what extent, and when are the questions still unanswered. The three most likely scenarios are: Roe<\/em> and Casey<\/em> will be reversed not in one decision but over the course of several cases in which the Supreme Court repeatedly upholds increased state restrictions on abortion; Roe<\/em> and Casey<\/em> will be reversed in one decision without the Court ruling that a fetus is a person; or Roe<\/em> and Casey<\/em> will be reversed in one decision with the Court ruling that a fetus is a person.<\/p>\n

A case must be \u201coverruled on the basis of facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions,\u201d the Court ruled in Casey<\/em>. And the overruling decision must be \u201ccomprehensible to the Nation, and defensible, as the Court\u2019s [response] to changed circumstances.\u201d Applying the Court\u2019s own standards, both Roe<\/em> and Casey<\/em> must be overruled.<\/p>\n

Every argument made by the Supreme Court when deciding Roe<\/em> and Casey<\/em> has been refuted, thus demonstrating a changed understanding of facts. The facts prove that human life begins at conception, and that a fetus is a person within the language and meaning of the Fourteenth Amendment. So a decision to overrule Roe<\/em> and Casey<\/em> would easily be comprehensible, and defensible.<\/p>\n

Of the Court\u2019s nine Justices, though, four won\u2019t overrule Roe<\/em> or Casey<\/em> for any reason, while two (Scalia and Thomas) will overrule Roe<\/em> and Casey<\/em> and send the issue back to the states, and it\u2019s believed two others (Roberts and Alito) will also overrule Roe<\/em> and Casey<\/em>. The other Justice (Kennedy) was part of the Casey<\/em> decision, which strongly suggests that he won\u2019t overrule either Roe<\/em> or Casey<\/em>, but it\u2019s believed new arguments might have an influence on him partly because of his more recent opinions in other abortion-related cases.<\/p>\n

Whether Roe<\/em> and Casey<\/em> are challenged before the Justices of this Court, or a future Court, will influence the strategy employed by those arguing the case. The beliefs of the individual Justices are, unfortunately, as important as the Constitution, the law, and the facts. But the next time an abortion case comes before the Supreme Court, the Court will be forced to accept the facts and overrule Roe<\/em> and Casey<\/em>, or deny the facts in full public view, exposing its own bias and damaging its own legitimacy, while setting the stage for greater public opposition and further defiance from state legislatures. Either way, the days of abortion-on-demand are nearing an end.<\/p>\n","protected":false},"excerpt":{"rendered":"

ROE v. WADE On January 22, 1973, the Supreme Court handed down its decision in Roe v. Wade. That same day, the Court also decided Doe v. Bolton. In Roe, the Court struck down a Texas abortion law. In Doe, the Court threw out the restrictions on abortion in a more liberal Georgia law. The […]<\/p>\n","protected":false},"author":29,"featured_media":30398,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false},"categories":[3],"tags":[],"yoast_head":"\nThe case against Roe v. Wade and Planned Parenthood v. 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