January 22, 2011
Roe v. Wade, the Supreme Court's Dumbest Decision
Imagine for a moment that you were ticketed for speeding by the state police. Suppose that you lied to the cop about why you were driving so fast. Then imagine that a group of special-interest lawyers contacted you and told you they wanted to appeal your ticket to the Supreme Court, and they gave you a legal pseudonym to hide your identity. Now imagine that the Court ruled that the ancient Romans had no speed limit on the Appian Way, that the Germans have no speed limits on the autobahn, and that speed limits are a violation of the Constitution and must be struck down.
Sound crazy? Well, the hypothetical scenario above pretty much describes the logic used by the Supreme Court in Roe v. Wade. Actually, "logic" is much too strong a word. The Court's opinion in Roe is pure sophistry -- and very bad sophistry at that.
Both opponents and supporters of Roe typically evaluate the decision in moral terms. Opponents of abortion speak in hushed tones about how Roe legalized the murder of millions of babies. Supporters of Roe stridently champion it as a "landmark" case for "women's rights." But as we observe the thirty-eighth anniversary of Roe today, we ought to remember it as the Supreme Court's dumbest decision.
From a constitutional perspective, moral arguments are irrelevant. Properly understood, the abortion question is a matter of federalism. Our Constitution lays out a governmental framework that is really quite simple. The powers of the national government are enumerated in Article 1, Sec. 8. The Tenth Amendment then tells us that any power not enumerated as a federal power (or prohibited by the Bill of Rights) is reserved for the states. This includes a wide range of state regulatory powers (known as "police powers") which include authority over many moral and social issues. For example, the Constitution does not mention prostitution; therefore, it is a question for the states to decide according to their own local morals. The state of Nevada has chosen to legalize prostitution; forty-nine other states have chosen to outlaw it.
The same logic should be applicable to abortion -- and it was, prior to Roe. By 1973, four states had legalized abortion, and forty-six others had restricted it. But the Supreme Court decided that it was going to ram abortion down the nation's throat, whether it had constitutional justification to do so or not. The end result was a train wreck of an opinion. Conservatives who oppose Roe ought not speak about it in hushed moral tones, but rather with derisive hoots, jeers, and catcalls. The decision is intellectually fraudulent, and anyone who takes it seriously reveals his own intellectual insolvency.
The plaintiff in the case, Norma McCorvey, was given the legal pseudonym "Jane Roe" to "protect her privacy." Why? The Court's other "privacy" cases -- Griswold v. Connecticut, Bowers v. Hardwick, Lawrence v. Texas -- do not have anonymous plaintiffs. McCorvey -- an alcoholic, bisexual carnival worker who later became a born-again Christian and pro-life activist -- initially lied about the circumstances of her pregnancy, claiming she'd been raped, but then recanted.
The way to most grievously undermine Roe's status as a precedent is to actually read it. The opinion, written by the late Justice Blackmun, is little more than page after page of obiter dicta -- which, loosely translated, means "extraneous B.S."
We forthwith acknowledge ... the emotional nature of the abortion controversy ... one's philosophy, one's experiences, and one's exposure to the raw edges of human existence ... are likely to influence and color one's thinking ... about abortion. [Emphasis mine.]
Do tell! Sounds more like the "Oprah Winfrey Show" than a Supreme Court decision.
In addition ... pollution, poverty and racial overtones [emphasis mine] tend to complicate and not simplify the problem. ...
Racial overtones? What in hell is that supposed to mean?
James Hubert Halford ... [alleged that the Texas law prohibiting abortions] violated ... his own right to practice medicine ... guaranteed by the First, Fourth, Fifth, Ninth[,] and Fourteenth Amendments.
Really? I'll give $500 cash to the first person who can find the phrase "right to practice medicine" in any of those amendments, or anywhere else in the Constitution. State governments have complete authority over the licensing and professional standards of physicians, nurses, clinics and, hospitals.
Ancient attitudes [toward abortion]. These are not capable of precise determination ...
OK, so why mention them?
We are told that at the time of the Persian Empire ... criminal abortions were severely punished. We are also told ... that abortion was practiced in Greek times as well as the Roman Era, and that "it was resorted to without scruple."
Precisely what does any of this have to do with the U.S. Constitution, ratified in 1789?
The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices ...
This clearly takes the cake as the most ridiculous statement in the entire decision. It's not as offensive as citing the laws of the British Parliament, though. British Parliament? Yep, you read that right:
The English statutory law. England's first criminal abortion statute ... came in 1803 ... Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967 ... [which] permits a licensed physician to perform an abortion ...
Wait a minute! Didn't we fight a revolution against these people? It's been over two centuries since the laws of Parliament mattered on this side of the pond!
It has been argued ... that [antiabortion laws] were the product of Victorian social concern to discourage illicit sexual conduct. Texas [the defendant], however, does not advance this justification in the present case ...
This is insane. Why did Blackmun mention an argument the defendant did not even make?
The Constitution does not explicitly mention any right of privacy ...
Aha! The truth is revealed! The mask slips!
[But] this right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty ... as we feel [emphasis mine] it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass [abortion].
There you have it. The Constitution does not mention any right of "privacy," but it's in there -- somewhere. Doesn't even matter where -- it's "broad enough" to include abortion. (Justice Rehnquist dissented, observing that paying a physician for a medical procedure is hardly "private" -- it's a commercial transaction that normally falls under the regulatory power of the state.)
Roe is so bad it makes other controversial decisions -- like Plessy v. Ferguson or Dred Scott -- look like models of Solomonic wisdom by comparison. In those cases, the Court was clearly biased, but it at least made an attempt to pay lip service to the Constitution.
What Roe revealed about our modern political elites is this: they simply do not give a damn what the Constitution does or does not say, and they know they can get away with ignoring it. The specious type of "reasoning" in Roe ultimately leads to Nancy Pelosi snarling incredulously, "Are you serious? Are you serious?" when asked by a reporter how the Constitution justifies ObamaCare; it leads to Justice Kennedy citing the European Court of Human Rights when declaring that the Constitution guarantees the right to anal sex; and it leads to Justice Breyer quoting the Supreme Court of Zimbabwe.
When our courts fail to heed the actual text of the Constitution they are supposedly applying and replace it with inane drivel about "the Ephesian, Soranos" and with foreign law, one is forced to conclude that we no longer live in a constitutional republic, but in a dictatorship of the judiciary -- where reading the "supreme Law of the Land" on the floor of the House is a controversial event.
James Madison must be rolling in his grave.