During the confirmation battle over Supreme Court nominee Samuel Alito, whenever you hear a liberal calling the judge "far right," think of the instant dossier published about him by People for the American Way (PFAW).
It is an excellent indicator of what this phrase means to the American left.
No sooner had President Bush nominated Alito than PFAW announced a "massive national effort" to defeat him, with PFAW President Ralph Neas labeling him a "far-right activist" who "would threaten Americans' rights and legal protections."
To support its argument, PFAW released its dossier, whose first topic, not surprisingly, is "Privacy Rights and Reproductive Freedom." "Alito's opinions on abortion and reproductive choice," it concludes, "are very troubling."
One decision cited by PFAW to back this claim is Alexander v. Whitman, a 1997 case in which Alito's appeals court declared that Kaylyn Alexander was not a "person" under the U.S. Constitution as interpreted by the Supreme Court in Roe v. Wade, the 1973 opinion that made abortion a "right." Alito concurred in the decision, expressing "almost complete agreement with the court's opinion." But his language evidently lacked the zeal PFAW demands in such cases. "Alito," claimed PFAW's dossier, "wrote a very brief concurrence which is ambiguous as to his views on Roe v. Wade."
In reality, Alexander did not tip Alito's hand on Roe. But it does say a lot about the pro-abortion cause.
In 1992, New Jersey resident Karen Alexander, eight-and-a-half months pregnant, went to a hospital to deliver her baby, Kaylyn. Fourteen minutes before Kaylyn was delivered by Caesarean section, all vital signs indicated she was "normal and healthy." Yet, she died before the Caesarean was completed.
The mother sued New Jersey. The state's law, her lawyers noted, allowed a wrongful death suit to be brought on behalf of a baby who was injured in the womb and then survived, but not on behalf of a baby who was injured in the womb and died there. They contended this law was unconstitutional under the 14th Amendment, which guarantees equal protection of the laws to all persons.
The lawyers cited a New Jersey Supreme Court case involving babies who survive prenatal injuries that said "(m)edical authorities have long recognized that a child is in existence from the moment of conception, and not merely a part of the mother's body."
In essence, they argued, all human beings are persons and entitled to the same rights under the 14th Amendment.
Judge Theodore McKee, writing for the appeals court, said this was not so. "Our inquiry is not a factual one," he said. "It is a legal one. The question is not whether a stillborn child is a human being from the moment of conception, but whether that unborn 'human being' is included within the meaning of 'person' contained in the Fourteenth Amendment. That legal question was resolved over 24 years ago when the Supreme Court decided Roe."
Clearly, legalized abortion is based not on fact, but fiction. The fiction is that little Kaylyn, 14 minutes before birth, was not endowed by God with the same rights she would enjoy after birth.
Under Roe, the determining factor in whether the government will defend a baby's rights is not whether the baby is a human, but where the baby is located. In her mother's womb, Kaylyn has no rights. Outside, she has the same rights as a PFAW lawyer.
This fiction has been perpetuated in our law because powerful interests -- such as PFAW -- want to perpetuate a monstrous injustice: the routine killing of innocent babies.
This injustice must not stand. One way to stop it is for Republicans to follow through on their 2004 platform, which endorses "legislation to make clear that the 14th Amendment's protections apply to unborn children." Rep. Duncan Hunter of California, joined by 69 co-sponsors, has introduced the Right to Life Act to do just that.
Another way to stop it is for the Supreme Court to overturn Roe, and for state legislatures to protect unborn life.
Yet, a federal appeals court, unfortunately, cannot on it own authority stop abortion -- and Judge Alito has never suggested his court could or even that he wanted it to.
What did he say in his two-paragraph concurrence in Alexander? "I agree with the essential point that the court is making; that the Supreme Court has held that a fetus is not a 'person' within the meaning of the Fourteenth Amendment," he wrote. "However, the reference to constitutional non-persons, taken out of context, is capable of misuse." The opinion, he added, could have been "informed by history," noting specifically that it is "significant that at the time of the adoption of the Fourteenth Amendment and for many years thereafter, the right to recover for injury to a stillborn was not recognized."
How this reveals ambiguity about Roe is unclear. But that PFAW will not accept any Supreme Court nominee who is not an abortionist absolutist should be obvious.