Constitutional Blunder

Mario Diaz

1/22/2008 12:04:36 PM - Mario Diaz

Though some may disagree, the 1973 Roe v. Wade[1] decision has to be the greatest constitutional blunder of our time.  It is the quintessential example of judicial activism, and it has to be the greatest exercise of (to use Justice White’s phrase) “raw judicial power” ever seen, resulting in the death of close to 50 million lives.

You would think that a decision of such impact would be closely studied and scrutinized by us as a country.  However, a recent Roe I.Q. Test created by Concerned Women for America (CWA), Focus on the Family, The Alliance Defense Fund and the Family Research Council, and taken by more than 40,000 people thus far, reveals that the American people are still ignorant as to the meaning of the decision. 

A recent discussion with an attorney friend revealed his mistaken belief that Roe allowed abortion only in the 1st trimester.  Sadly, he’s not an exception.  The average score for the Roe test was 59 percent — an F!  That’s even worse when you realize that 70 percent of the 40,000 plus participants thought that abortion should be illegal except for the life of the mother or illegal in all circumstances.

So let’s give it a try, let’s take a quick look at Roe again.

This will come as a shock to the millions who still believe that abortion is illegal except to save the life of the mother, but Roe invalidated a law that said just that.  The Texas statutes at issue made it a crime to “procure an abortion …” except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.”  The statutes were first enacted in 1854.

Jane Roe sought a declaratory judgment that the statutes were unconstitutional and an injunction restraining their enforcement.  Roe was pregnant and wanted to terminate her pregnancy by an abortion performed by a competent, licensed physician, but 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.  She claimed the statutes were unconstitutionally vague and that they abridged her constitutional right to privacy.

Justice Blackmun, writing for the majority, acknowledges that “The Constitution does not explicitly mention any right of privacy,” but he recalls that they have read it into the Constitution on a recent line of cases that came before Roe, some of the more interesting being Griswold v. Connecticut[2] and Eisenstadt v. Baird.[3]  He writes:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty… as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.[4]

Why?  Because they say so.

But what about the rights of the child in the womb?  Well, Justice Blackmun very interestingly, after acknowledging at the beginning of the opinion the “vigorous opposing views, even among physicians,” goes on to proclaim from his high mountain that the unborn “fetus” is not a “person,” so they do not enjoy the right to life.  The Court acknowledges that “[i]f this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically be the [Fourteenth] Amendment.”  Too bad he’s not actually a person, though.

The Court did say that the mother’s privacy right “cannot be said to be absolute.”  “A State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”  Therefore, limiting the now fundamental right to an abortion can only be justified by a “compelling state interest.”

In any other case, the Supreme Court’s “jurisdiction” might have ended there, answering the question that was actually presented to them: “Are the Texas statutes constitutional?”  But the Court had been overstepping its boundaries for so long it barely skipped a beat, making blatant policy decisions part of constitutional law.  Before, the Justices would try to disguise it as being read into the Constitution, but the journey on which they decided to embark went far beyond any disguise.

Almost flippantly, like a child makes up rules for a new game, the Supreme Court established that:

(a)    For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b)   For the stage subsequent to approximately the end of the first trimester, the state, in promoting its interest in the health of the mother, may if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c)    For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.[5]

It is this “life or health of the mother” exception, left open-ended by the Court, that has been given an expansive definition in the companion case to Roe, Doe v. Bolton,[6] making it abortion-on-demand for all intents and purposes.  When the “health” of the mother can be her “psychological” well-being because she won’t be able to graduate, or go to the prom, then anything can be an excuse for an abortion.

If you can’t believe the blatant disregard for the structure set up by our founding fathers, where these types of policy decisions are given to the people through their elected officials, then you are not alone.  Justice Rehnquist in his dissent stated:

The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.[7]

Of course, they weren’t concerned with what the drafters intended.  If they had been, then they would have noticed that these laws were enacted before the Fourteenth Amendment in 1868, some as early as 1821, and there was no issue at all with them.  Justice Rehnquist points out that there were “at least 36 laws enacted by state or territorial legislatures limiting abortion.”  He accurately points out that “[t]here apparently was no question concerning the validity of this provision or any of the other state statutes when the Fourteenth Amendment was adopted.”[8]

Apparently the Amendment had “evolved” throughout the years to include it.  Why you ask?  Well, because they say so, why else?

This January 22, as we remember the greatest Constitutional blunder of our time, I hope we refresh our memories as to what we are really talking about.  These are not “fetuses” aborted before they were “persons” in the first trimester of pregnancy because the life of the mother was in danger.  These are close to 50 million children we have lost due to our own failure as a society to stand up for righteousness and justice. 

And Justice ultimately comes from God’s hands, not the Supreme Court’s.



[1] Roe v. Wade, 410 U.S. 113 (1973).
[2] Griswold v. Connecticut, 381 U.S. 479 (1965).
[3] Eisenstadt v. Baird, 405 U.S. 438 (1972).
[4] Roe v. Wade, 410 U.S. 113, 153 (1973).
[5] Id. at 164.
[6] Doe v. Bolton, 410 U.S. 179 (1973). 
[7] Roe v. Wade, 410 U.S. 113, 174 (1973).
[8] Id. at 177.