Monday, August 08, 2005

With all the hoopla we seem to be getting (and forgive me if we're not getting the hoopla ... don't forget I just got back from tour) from those who wish to bring down Judge Roberts saying he would support overturning Roe v. Wade (which, alas, is a flimsy position given that he has made statements favoring both sides), I'm getting the idea that I might make a few statements about the constitutionality of Roe v. Wade as a blogger and as an American.

Before I get into this explanation, let me first reiterate that I am staunchly pro-life, and that I was nearly a victim of this "procedure" that takes the life of an innocent child. Those who love me, I am sure, are glad that my mother (a strong pro-life activist today) made the right decision. Every time I look at my mother, I see the pain she once felt as a young woman, seemingly not ready for motherhood, and also the love and relief she feels in the knowledge that she did the right thing. Make no mistake - killing a baby is NEVER the right thing.

Also, in the interests of objectivity, I will be trying to present this issue in a constitutional context, rather than dwell on the rights of the child. Since I am a staunch pro-life conservative, my liberal friends must understand that this cannot be left out of the discussion; but I will simultaneously endeavor to show how, notwithstanding the ruthless violation of the rights of the child, this Supreme Court decision violates the applicable provisions of the United States Constitution. Hopefully my conservative allies will understand that, in order to win an argument, one must sometimes confront one's adversary on terms which are accepted by both sides as legitimate. Legally, in the United States, the Constitution is both accepted and democratically established as the supreme law of the land. Those who wish to challenge the legitimacy of the Constitution are politely and respectfully asked to take their arguments elsewhere.

First, some basic background information on Roe v. Wade:

I. The participants:

A. "Roe" - Single and pregnant, she challenged the constitutionality of Texas's abortion laws.

B. "The Does" - Married and childless, they also challenged the law on the basis of future injury caused by possible contraceptive failure, pregnancy, lack of preparedness for parenthood, and health problems for the "potential" mother.

C. "Hallford" - A licenced physician authorized to intervene, even though he faced two state abortion proceedings.

II. Case background:

A. District Court:

1. A three-judge Disctrict Court held that Roe and Hallford (and others like them) had a legitimate gripe with the law.

2. The same court ruled that Roe's and Hallford's rights under the Ninth and Fourteenth Amendments were violated by these state laws, but that the court could not issue injunctions to allow the plaintiffs to have their way.

3. The court threw out the Does' complaint.

B. US Supremt Court (This is the court decision):

1. The Supreme Court heard the case based on the granting of declaratory, but not injuctory relief. In other words, the Supreme Court took the case because the lower court had decided to only speak on the matter rather than force the abortion to be performed.

2. Hallford's case was thrown out, and the Does' case having been thrown out was upheld, since no actual pregnancy situation existed. "Roe" apparently had a miscarriage, but the court still heard the case on the basis that that fact did not preclude the Supreme Court from hearing the case, ostensibly since "Roe" was, in fact, pregnant at the time she brought the case forward.

3. The court ruled that, though provisions were made to save the life of the mother, the fact that the law made no provision for the stage of the pregnancy violated the due process clause of the Fourteenth Amendment, which protects against the violation of the right to privacy, which would include (with some limits) the right for a woman to end her pregnancy. The court further rules that in the interest of protecting the health of the mother, and at the same time protecting the "potentiality of life", the interest of the state changed with the growth of the child and reached "compelling" points at various times throughout the pregnancy. The notorious "Trimester Doctrine" came into play in making these arguments. According to the "Trimester Doctrine", during the first trimester, abortion-on-demand is to be the order of the day. During the second trimester, states are authorized to apply laws as needed to protect the health of the mother. During the third trimester, well, you had better have a damned good reason there, pal.

4. Abortions may only be performed by doctors officially recognized by the state, and that since the Supreme Court was ruling that Texas's abortion laws were unconstitutional, the issue of whether "Roe" should be granted any sort of injunction would basically be a moot point.

Justice Blackmun, in his opinion, said:

Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue "on behalf of herself and all other women" similarly situated.
OK. This one will actually be pretty easy. All we have to do here is find the place in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments where the right to personal privacy is enumerated.

The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Sorry, your honor. No right to personal privacy is enumerated in the First Amendment. Could it be you're just as full of it with your other citations?

The Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This is as close as you are going to come in finding a right to personal privacy in the Constitution. Unfortunately for the pro-abortion crowd, this amendment has to do with the protection of people's material property and documents, not general privacy. There is nothing in this amendment that precludes a state from making and enforcing laws regulating abortion that are supported by their voters.

The Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Roe was not being held for a crime by being denied an abortion, nor was she being compelled to testify against herself in court. She was not being deprived of life, liberty, or property, or having her property taken away from her. If you are going to argue that she was being deprived of liberty, you would have to make the case that she somehow got pregnant without making certain choices that she was completely at liberty to make. That case cannot be made here, so the Fifth Amendment wasn't violated, your honor.

The Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Apparently, the case is being made here that since the Constitution and the Bill of Rights is silent on the issue, that Roe should have free reign to do what she pleases. However, there is still nothing in the Ninth Amendment (which was included in the Bill of Rights to keep the federal government out of the business of creating new rights for itself at its whim) that precludes a state from making and enforcing abortion laws that their voters support.

Finally, the Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age (changed to 18 by the 26th Amendment), and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 1 forbids states from making laws that violate the Bill of Rights and reiterates the provisions of Fifth Amendment protections outlined earlier in this discussion. There is nothing in a law supported by the voters that violates this section of the Fourteenth Amendment.

Sections 2-5 deal with representation, voting rights, treason by government officials, and public debt, and does not apply to this case.

These "constitutional rights" form the basis of Justice Blackmun's justification of his position. Even if you believe abortion should be legal, you cannot justify the Supreme Court's position using the citations Justice Blackmun gave. There simply exists no "constitutional right to privacy" in any of the references given, as I have clearly shown. This was simply a case of judicial activism. Justice Blackmun and the other Supreme Court justices wanted abortion to be legal, so they just made up a law.

Article I, Section 8 of the Constitution gives CONGRESS the power
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
There is no subsequent clause giving the judiciary or anyone else the authority to make laws. The Supreme Court acted outside its authority, plain and simple.

Consider then, the position that that baby is a human being, and is guaranteed other rights by this same Bill of Rights. Even if there is uncertainty with regard to the humanity of that child (which is apparently becoming less and less the case), it should go without saying that any error be on the side of protecting that person's life. After all, your life is protected by the law, and my life is protected by the law, so why not that baby's?