35 Years Later: Roe is Me!

Tuesday marks 35 years since the Supreme Court officially stopped using the Constitution of the United States as a guide for its decisions. In the worst and most blatant act of activist policymaking in the history of jurisprudence, the Court ruled 7-2 to strike down a Texas law prohibiting abortion for no reason other than wanting to legalize abortion. Reading the Constitution as it is written, there was absolutely zero justification for the ruling, unless one was under a great deal of hallucinogens (this was 1973, after all). The normal, sober reader would find no references to “abortion,” “privacy,” or any other supposed evidence for the seven justices coming to the pre-determined policy preferences they did. Thirty-five years later, not much has changed in the debate that has come to define social policy in this country. Congress is still forbidden from taking on the issue, Norma McCorvey (“Jane Roe”) is still the leader of an anti-abortion group, 50 million lives have still been lost, and the ruling is still not going to be reversed.

After what must have been years of ceaseless searching, the young and ambitious lawyers Sarah Weddington and Linda Coffee- with the full backing of an entire legion of pro-abortion and radical feminist groups- finally found their test case. Ms. McCorvey was willing to agree to the lie that a pregnancy she helped create was the result of rape. The lawyers knew as most familiar with the issue did that no free legislature in the world at that time would take their side and legalize this barbaric procedure (as a side note, the only dissenting votes ever cast in the history of East Germany’s communist Volkskammer came in a vote liberalizing abortion law). They sued in Texas- what more of an iconic state- and after three years of appeals (during which McCorvey gave birth), the battle was on. The hearing based on a lie was a charade from the beginning. The Burger Court, as the Warren Court before it, had an established and well-deserved reputation of liberal activism without regard to precedent or constitutionality. William Rehnquist, one of the two dissenters, wasn’t even able to hear the first round of arguments. Thus, 35 years ago Tuesday, the Court issued its arranged decision. Citing little more than their desire to legalize abortion (they even rejected Weddington and Coffee’s Ninth Amendment argument), the Court declared the procedure a fundamental right.

The results were as predictable and well-known as they are popularly lampooned on college campuses. In 35 years an estimated 50 million abortions have been committed in the United States. While Planned Parenthood and the National Abortion Rights Action League trumpet this figure with National Socialist-like sadism and pride, the Genocide Awareness Project is made fun of, protested, harassed, vandalized, or worse when they cite this figure on America’s havens of Stalinism we call “academia.” Certainly anyone responsible for 50 million deaths would today find themselves on a United Nations war crimes tribunal (Comrade Stalin is blamed for somewhere around ten million deaths, Hitler around twelve million), but not in this case. Abortion is a ritual to the radical feminist, and Roe liberated them.

The aftermath is perhaps less reported. Those 50 million abortions came at a steep cost the likes of Planned Parenthood and NARAL would rather Americans not know about. Abortion is a horrific procedure, the details of which I’ll not describe here, which results in many cases in severe and permanent psychological trauma. Very permanent and life-threatening injuries can also result, ranging from the inability to conceive or bear a child again to, yes, death. Shockingly, no effort has ever been made to attempt to clean up the procedure: any legislative effort to bring the procedure to within the bounds of modern medicine is seen as an unconstitutional attack on a woman’s right. In which case the procedure hardly seems safer than the “back alley abortions” radical feminists warn us about. So, counter to the slogans of left-wing pro-abortion organizations, the procedure, while legal, is neither safe nor rare. It’s no wonder that Norma McCorvey became an anti-abortion activist and since 1994 has fought to reverse her own Court decision. Maybe you saw her Tuesday in the annual March for Life in which thousands of men and women from all over the country come to Washington, DC in an ultimately futile attempt to change the decision (this is not, of course, to be confused with the annual March Against Life staged by Planned Parenthood, NARAL, and the National Organization for (Liberal) Women).

The sad truth is that, arguing as a strict constructionist who doesn’t hallucinate when reading the Constitution of the United States of America, there is nothing that can be done. As there was no legal or constitutional basis for Roe being decided as it was, there is also no legal or constitutional basis for it being overturned. Stare decisis- the supposed basis of our judicial and legal system- dictates that court decisions, even erroneously-decided, nonsensical, policy-preferenced ones which blatantly ignore the American Constitution, must be upheld. There are, of course, exceptions. Cases such as Dred Scott v. Sandford and Plessy v. Ferguson were overturned not just because they ignored the Constitution but because they openly defied it. The 14^th Amendment clearly guarantees equal protection and due process of the laws as ignored in Plessy, which Brown v. Board eventually corrected.

In Roe, there is nothing to correct since there was nothing defied. Simply put, two judicial wrongs don’t make a right. The situation is even more unlikely to change considering the current (and future) makeup of the Court. Already there are five solid left-wing justices who will uphold abortion until the day they die (which in a couple of cases may be closer than we think) and four justices who are not particularly interested in injecting their own personal views into jurisprudence. With President Bush’s two appointments of strict constructionist precedent-upholding jurists (and with mainstream Republican nominees promising not to appoint the likes of Pat Robertson to the bench), the law is even less likely to be overturned. That perhaps is the most frustrating thing about Tuesday’s infamous anniversary. “We the People” never had a say in the matter, and we never will.