By Yonoson Rosenblum | JULY 12, 202
Down a slippery slope toward the devaluation of life
The most astounding aspect of the invective being hurled at the United States Supreme Court in general, and at Justice Samuel Alito, the author of the opinion in Dobbs v. Jackson Women's Health Services, which overruled Roe v. Wade (1973) and Casey v. Planned Parenthood (1992), in particular, is the almost complete absence of any critique of Alito's constitutional reasoning, or even simple honesty about what the Court decided. On the latter score, the Court's ruling did nothing to outlaw abortion; it simply returned the matter to state legislatures. Alito addressed what the Constitution says about abortion, not his personal views for or against the procedure.
It is fitting that the critics have concentrated solely on the result in the Dobbs, as if there were no difference between the Supreme Court interpreting the Constitution and state legislatures enacting legislation. For it is hard to think of another Supreme Court case dictated more by the desire to achieve a particular political result than Roe.
President Biden's description of Dobbs as "an exercise in raw political power" applies with far more accuracy to Roe itself. Roe's discussion of different rules to apply at different stages of pregnancy reads more like a piece of legislation than a rule derived from the Constitution. As the late Professor John Ely, a pro-abortion professor at Yale and Harvard law schools and later dean at Stanford, wrote of Justice Harry Blackmun's opinion in Roe, "It is not constitutional law and gives almost no sense of an obligation to try."
Harvard's Laurence Tribe, the dean of American left-wing legal academics, described the most curious thing about Roe as being that "behind the verbal smokescreen, the substantive judgment upon which it stands is nowhere to be found." A former clerk to Justice Blackmun, Edmund Lazarus, candidly admitted, "As a matter of constitutional interpretation, Roe borders on the indefensible."
Obviously, the words of a Constitution ratified over 200 years ago cannot anticipate every future development. Phones were unknown in 1789, at the time the Constitution went into effect, and so the drafters did not have wiretaps in mind. But the Fourth Amendment's guarantee of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," except upon a showing of "probable cause," was naturally extended to a requirement of "probable cause" for government wiretaps.
No such warrant exists for finding in the 14th Amendment a constitutional requirement of "right to abortion," especially given that 30 out of 37 states outlawed abortion in 1868, when the 14th Amendment was adopted, and the practice had long been an "inchoate crime" in American common law: contracts for abortion were void, advertisements for abortion banned, and places of abortion subject to seizure.
By 1992, in Casey, a narrow 5-4 decision, the majority of justices had long since given up trying to defend Roe as somehow "dictated by the text, logic, structure, or original understanding of the Constitution," in the words of Princeton's Robert George and Matthew Franck. Roe's recognition of a constitutional right to an abortion survived only because a plurality of three justices said it should, based on the legal doctrine of stare decisis (let the decision stand.)
But as Chief Justice Roberts has written, stare decisis "is neither an inexorable command nor a mechanical formula for adherence to the latest decision." If it were, Dred Scott, Plessy v. Ferguson (separate but equal), and Lochner (states may not set maximum work hours) would still be law. But when "the underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jerry-rigging new and different justifications," then the doctrine should not be applied. As we have seen, Roberts's words describe Roe to a T.
Since the very moment that it was issued, a cottage industry has developed of law professors striving to enunciate a more plausible constitutional basis for the result in Roe, the most famous of which was probably that of Laurence Tribe in the Harvard Law Review. He argued that since the abortion issue depends on definitions of when life begins, and that is ultimately a theological issue, any ban on abortion constitutes a forbidden establishment of religion. Really?
Why, then, is a decision that life begins only at birth not also a theological opinion, and therefore banned by the Establishment Clause? Are murder and theft also improper subjects of legislation because they are forbidden by the Ten Commandments? And if one answers that a secular purpose can also be enunciated for outlawing murder and theft, so too can a secular case be made against abortion.
Kevin Williamson, born to a teenage mother 23 days before Roe was reargued in the Supreme Court and who was subsequently adopted, writes in National Review's special issue of November 21, 2021, "End Roe": "The truth is that we are killing 600,000 human children a year, that we are doing this almost exclusively because they are inconvenient, and that we will not have a humane society until we stop." He also notes that there are millions of American families waiting to adopt one of those lives destroyed. I have never read a word from Williamson suggesting he is religious.
Nor is the beginning of life the only relevant datum with respect to the abortion debate. For instance, recent scientific findings that the fetus experiences pain in utero (as during an abortion) from as early as 12 weeks.
SO MUCH for the legal argument. But the recognition of "a right to abortion," besides having no basis in the Constitution, has plunged us down a slippery slope toward the devaluation of life. Presidential candidate Bill Clinton coined the phrase "safe, legal, and rare" with respect to abortion in 1992. But that no longer describes the position of the Democratic Party, and particularly its progressive branch, which has turned abortion into a sacrament and today uses the language of "pro-abortion."
The Born Alive Infants' Protection Act of 2002 passed by acclaim in the Senate, with nary a nay vote from the Democratic side of the aisle. Eleven years later, however, after Philadelphia physician Kermit Gosnell was convicted for routinely killing infants who survived abortion in his decades-old practice, Republicans put forward the Pain-Capable Unborn Child Protection Act, which sought to restore criminal and civil penalties stripped from the original 2002 bill. This time, however, the legislation died in the Senate, falling short of a filibuster-proof majority. In the House, only five Democrats voted for the legislation, with 177 opposed, on the grounds that it might inhibit the performance of abortions.
How did Nat Hentoff, best known as a secular liberal jazz critic, become an ardent opponent of abortion? In 1984, he read about a Long Island baby born with spinal bifida, who died because her parents refused surgery to close her spine and drain fluid from her brain, citing the same right to "privacy" upon which Roe was based. In researching that case, he came across that of a Down syndrome baby who died when his parents refused surgery to repair his deformed esophagus.
Finally, he discovered, in the records of Yale-New Haven Hospital, reports of what doctors euphemistically called "early death as a management option for infants considered to have little or no hope of meaningful humanhood." Yet he knew plenty of happy handicapped adults with similar disabilities whose parents had not just let them die.
Old friends from the ACLU and liberal congressmen attempted to stir Hentoff from the issue, telling him, "Why don't you just consider it a late abortion?" Instead of deterring him, however, that comment had the opposite effect. It alerted him that abortion had made all society's most vulnerable members too inconvenient, too imperfect to live.
"The slippery slope business began to make sense to me," he remembered later.
Convenience or the lack thereof had become the standard for life. Not all were so impolitic as liberal icon Ruth Ginsburg as to describe abortion as getting rid "of all those people we don't want too many of." But there you have the Roe mindset, in a nutshell.