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