Does a Woman Have a Constitutional Right to Abort a Human Life? Part IV

Part I introduced the issue of the right to have an abortion because it is of sufficient importance to society to understand the decision reached by the Supreme Court to overturn Roe vs. Wade. Part II developed this thesis. Part III introduced the dissenting Judges’ opinions.

Next, the dissenting Judges present an inflammatory attack on the men who founded the United States.

As an initial matter, note a mistake in the just preceding sentence. We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not per­fectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the commu­nity embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitu­tional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of auton­omy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship ( dissenting pg 15),

This quote shows how dangerous the idea is that the Constitution is a living document, whose meaning can be changed at the whim of a majority of Supreme Court justices. That idea totally destroys any protection that the Constitution might otherwise provide.  It also enshrines the dangerous idea that “Judges may declare that the Constitution can mean anything they think that it should mean.”

The Federalist # 78 is particularly relevant for the light it sheds on the issue of Constitutional limitations on the power of the Executive, the Legislative, and the Judicial branches of Government.  The following passage goes directly to the core of the threat to all of our freedoms and continued liberty from this particular judicial abuse.

The quote describes the rationale and the justification for the Court’s review of the Constitutionality of laws legislated by Congress. But the argument enunciated leads to exactly the same logical conclusion when applied to acts of the judiciary! No judicial act, therefore, contrary to the Constitution can be valid, for the reason identified.

There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize but what they forbid.

See also Marbury v. Madison, which is a tightly reasoned argument for strict adherence to the limits set by the Constitution.

For those who are interested, the Constitution clearly spells out how it is to be amended, and that method is not by an arbitrary Judicial decree of a majority of the Supreme Court judges at any given moment in time!

The evidence presented in the opinion of the Court shows that the majority of this Court has just returned to the original and historic understanding that the meaning of the Constitution is not subject to the whims of judges!  By specifying explicit limits on the powers it confers, the Constitution, as written, provides  the solid foundation needed to successfully defend our liberties against encroachment by government officials.

The Federalist # 78 identifies two crucial limitations on the power of Judges:

all judges [appointed under the Constitution] … are to hold their offices DURING GOOD BEHAVIOR;  the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them. …. The judiciary, on the contrary, has no influence over either the sword or the purse; ….  It may truly be said to have neither FORCE nor WILL, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.  For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’

The dissenting Judges then go on to a vicious and uncalled for attack on all men.  The purpose of creating division between men and women for political gain is obvious.

As an initial matter, note a mistake in the just preceding sentence. We referred there to the ‘people’ who ratified the Fourteenth Amendment: What rights did those ‘people’ have in their heads at the time? But, of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not per­fectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the commu­nity embraced by the phrase ‘We the People’ (dissenting pg 14, 15).

First, do notice the vitally important fact that the dissenting Judges have just undeniably acknowledged their own recognition that the actual words of the Constitution were never intended to support a woman’s “reproductive rights” or that a woman had a right to abort the life in her womb by those who wrote them or approved them.

Next, notice the introduction of the emotionally charged issue of the terrible mistreatment of women, [and blacks, and etc.] that existed years ago, for which white men are today and will be forever inexcusably guilty. This tactic, that is used to “cut off further rational discussion” with  an utterly non legally relevant issue, does persuade those easily provoked to hate and unreason, which is why is it so commonly used today by people who know they don’t have a valid argument. But for three Judges of the Supreme Court to use this vile tactic in a legal decision is in my opinion absolute evidence that they are unfit to be judges in any court.  I submit that here is evidence that the dissenting Judges are so blinded with animosity that they are incapable of impartially judging issues.

Stripping away the emotional charges in their carefully crafted statement, the dissenting judges are identifying that historically there were some very real abuses. But that fact does not trump every other consideration, as these judges intend the unwary and gullible to believe. Put bluntly, these dissenting judges do not rely on the merits of their arguments and values, but rather on how they have structured their arguments to obtain an emotional reaction that advances their goal.

In a word, they have chosen modern scientific propaganda techniques over honest reasons to support their viewpoint. Our society is awash in such propaganda techniques.  And the widespread use of those propaganda techniques is a serious threat to the survival our society and the historically unique freedoms that we do enjoy.

The fact that there were abuses years ago is not evidence, much less a proof, that the viewpoint that the dissenting Judges defend is valid or true. I submit however, that the choice of these Judges to use tactics that are known to provoke mob violence is judicial misconduct.

And the worst detail of all, is that not just women and not just blacks, but in fact even the majority of white men were also then and even today still subject to many unfair and abusive conditions. While it is wonderful that we have made real progress, the fact remains that this world is still very unjust in many ways. I’ll name just one. Employers have a practice of asking a potential employee if they are retired military. And if a prospective employee answers yes, the employer only offers him or her a job at a lower pay level then they would give to others.

An important choice is whether we are thankful for the many advances that have already been made, or choose to be forever embittered by so much ancient history.  I further submit that the poorest citizen of the United States is vastly richer, freer, and better off than a large percentage of the people who live anywhere else in the world!

Next, the dissenting Judges argue a rather extreme view and promote a rather strange idea of Court neutrality.  For them, Court neutrality is imposing their viewpoint of the issue, no matter what the evidence shows.!

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” posi­tion, as JUSTICE KAVANAUGH tries to argue. Ante, at 2–3, 5, 7, 11–12 (concurring opinion). His idea is that neutrality lies in giving the abortion issue to the States, where some can go one way and some another. But would he say that the Court is being “scrupulously neutral” if it allowed NewYork and California to ban all the guns they want? (dissenting  pg 20).

The dissenting Judges implicitly demand that everything be judged on the basis that everything they say and claim is some kind of absolute undeniable truth.  A more intolerant and tyrannical concept is difficult to imagine.  Do notice that JUSTICE KAVANAUGH  and the majority Judges do clearly state these are the very different and plainly stated reasons for their decision.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The per­missibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democ­racy: by citizens trying to persuade one another and then voting.’ Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand (opinion pg 5 & 6).

Do notice that by staying within the limits of what the words of the Constitution do and do not mean, and by not imposing the opinion that the majority of Judges happen to believe should be as “THE ANSWER” to the issue of abortion, the majority Judges have taken a judicially neutral position on that question.  Absent a clear and unambiguous Constitutional mandate, that is exactly the position that the Constitution obligates  Judges to take.  Sadly, the dissenting Judges scornfully dismiss and reject the idea of Constitutional limitations on their power.

I submit that an accurate and true summary of the dissenting Judges argument is that

For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women (dissent pg 1).

When the Court deci­mates a right women have held for 50 years, the Court is not being “scrupulously neutral” (dissent pg 21).

First, notice that the dissenting Judges are subtly arguing that their view of reality is decisive evidence for their conclusion.

Next in importance is that the dissenting Judges acknowledge that the “so called right” had only “been held” for 50 years, which is from the date of the Roe decision.  But the Constitution had been in effect for all the original states for 231 years, and the Fourteenth Amendment had been in effect for 154 years.

If the Constitution was really the source of the alleged rights decreed by the majority Judges of Roe v. Wade, those rights in law would have existed from the time the words confirming them were written and approved, even though the right was only fully “recognized” for 50 years”.  This is a subtle distinction and point of law, but I believe competent judges would know and understand the difference.

Compare the preceding to the opinion of the Court, and notice that the Judges of the majority opinion base their decision on the fact that they could not find any evidence that supported the claim of the Judges in Roe v. Wade that the  rights that they imposed on society were “recognizably un-enumerated rights that were intended to be protected by the Constitution. Therefore, since no evidence was found to support that claim, the majority Judges correctly recognize only the written Constitution itself as the proper basis for their decision.  Nothing in the Constitution grants Judges the power to use any other standard than that actually conferred by the Constitution!

The dissenting Judges then go on to present another personal attack on the integrity and honesty of Justice Kavanaugh – in capitals no less.

JUSTICE KAVANAUGH cannot obscure that point by ap­propriating the rhetoric of even-handedness. His position just is what it is: A brook-no-compromise refusal to recog­nize a woman’s right to choose, from the first day of a preg­nancy (dissent pg 21).

Why do the dissenting Judges refuse to answer the actual and narrow conclusion of the majority Judges that there is no Constitutional right of a woman to abort the life in her womb? Neither the Constitution nor any public opinion affirmed that a woman had such a right.  As pointed out by the majority opinion, the source of that alleged right rested entirely and only on the opinion of a majority of the Judges of the Supreme Court, who imposed their personal view of the way they thought that things should be upon the people of the United States, with a complete disregard of the meaning of various Constitutional provisions.