They are certainly fatal for the babies. Roe v. Wade (1973) needs to be critiqued yet again, since it is so crucial. This post updates the one at American Thinker on June 9, 2018.
When Socrates appeared before the jury of Athens, he said he was not used to the specialized idioms and restrictive language of the court; he was a stranger there.
In that spirit, let’s look at Roe as outsiders. Maybe we can see flaws that the professionals don’t or won’t.
The first point shows the weakness in our Constitution itself.
1. Article Three (Judicial) overrode Article One (Legislative).
State legislatures ultimately derive their authority from the Constitution. In the Roe case Texas said no to abortion, and so did other state legislatures. These laws were not unreasonable or unjust in themselves. They stood for a long time. But Blackmun said they were indeed unconstitutional. Why the power grab? In Marbury v. Madison (1803), for the first time the Supreme Court gave itself permission to review legislation that the Justices deemed unconstitutional. Now who can stop an aggressive, leftwing judiciary that wishes to revolutionize and overturn laws it does not like?
With so much power in the hands of the Few, Justice Blackmun and other liberals before and after him have become Plato’s (unappealing) enlightened Philosopher-Kings who run roughshod over the hoi polloi and their representatives.
He referenced the Ninth Amendment nine times in Roe. The Supreme Court in Griswold v. Connecticut (1965) held that Connecticut’s birth control law was unconstitutional. Then the Justices opened the door to unwritten rights adjoining the written ones. The written rights cast a “shadow” on the unwritten ones (umbra is Latin for “shadow” or “shade”).
To outsiders like us, this new interpretive twist seems as though liberal Justices are simply going on fishing trips looking for rights by which they can impose their own politicized will on “we the people.”
But let’s say penumbral rights exist. Then why can’t Article One discover them and extend them to living, prenatal babies? There is nothing unreasonable or outlandish about doing that.
3. Blackmun followed the questionable method of mountains of interpretations built on silence.
He wrote: “The Constitution does not explicitly mention any right of privacy.” Then he goes on to reference case after case in which Justices found this right in the Constitution. He expanded the silence and earlier interpretations to include the right to abortion. So it works out like this:
Silence → Interpretation → Interpretation → Interpretation → Interpretation → Other Interpretations → Right to privacy → More Interpretations → Abortion
The immediate source of this convoluted legal reasoning is rooted in modernism morphing into postmodernism, all of which was influenced in part by Nietzsche. Nietzsche on perspectivism:
Everything is Interpretation: . . . Against those who say “There are only facts,” I say, “No, facts are precisely what there is not, only interpretations.” We cannot establish any fact in itself. Perhaps it is folly to want to do such a thing. (Quoted in Louis P. Pojman, Classics of Philosophy, Oxford UP, 1998, pp. 1015-16, emphasis original)
Intellectuals going to universities and law schools absorbed the whole modern-postmodern movements.
Where does this expansive interpretational method end? It doesn’t, but what do liberals care? The razor-thin, laconic Constitution hinders their agenda, and the enlightened Philosopher-Kings sniff at its silence.
4. This expansive interpretational method opened the door for Blackmun to interpret the Fourteenth Amendment out of its historical, original context.
He referenced the Fourteenth Amendment thirty-eight times. However, in his dissent, Justice Rehnquist shot down Blackmun’s expansive interpretation, noting that there were thirty-six States and territories that restricted abortion when the Amendment was ratified in 1868; the authors did not have abortion in mind. “The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter [of abortion].”
But why would a liberal activist like Blackmun wish to limit himself to what the Constitution actually says or does not say in its original context? It is outdated and too restrictive, to begin with.
5. Blackmun was confused about “potential life” and “viable life.”
He used the odd phrase “potential life” several times in his decision. But it is clear that the baby is not a potential life, but is actually living all along its stages of growth. (Even a zygote is living.) He certainly is not dead. However, Blackmun apparently believed (wrongly) that a baby is not living until he becomes viable outside of the womb. Blackmun placed viability at 24 to 28 weeks (six to seven months, so late-term abortions are allowed). However, this opinion is based on primitive science. A baby can live outside the womb before that timeframe, thanks to modern technology.
And why the criterion of viability in the first place? Why not when the baby’s heart begins to beat, or when he undergoes neural development? Justice Blackmun may not have known about these other criteria because he wrote his decision in 1973. Alternatively he may have known about them, but simply ignored them because they did not support his foregone conclusion. Either way, his reasoning was shortsighted, arbitrary and wrong.
6. Blackmun tendentiously followed scholars who supported his views and ignored others.
For example, the Hippocratic Oath says: “I will not give to a woman an abortive remedy,” a clause Blackmun quoted (Sec. VI). Doctors had been swearing this oath for a long time, so it was imperative that Blackmun dispense with it. To do that, he referred to a certain Dr. Edelstein who said it was not that important historically. He ignored others who said it was (endnotes 8-19). If an M.A. thesis were so tendentious without adequately discussing opposing views, it would be rejected or required to be rewritten.
7. Blackmun was unqualified to judge matters relating to prenatal life.
This is not a criticism of him alone. All Justices (and judges) are unqualified. They are not specialized scientists. Justices live in a closed loop, a closed-off world, as they sit in paneled courtrooms and listen to other lawyers arguing about their interpretations of other interpretations and read amicus briefs that promote one view of science over another. They do not call in real experts whom they can examine, face to face. However, members of legislatures can do exactly that. Therefore, the issue of abortion (and many other issues) must be placed back in legislatures.
The Constitution has a major flaw—there is no way to stop a runaway judiciary, based on first principles (impeaching a justice for an interpretation which Congressmen and women disagree with seems risky and unstable). We are now in danger of being run completely by enlightened Philosopher-Kings who gleefully thwart the will of the people when it suits them. The legislative and executive branches can only sit passively and helplessly, as the enlightened Philosopher-Kings dismantle their laws.
Unfortunately the only solution is political. People must elect politicians who will nominate or vote for judges and Justices who respect Article One and the entire Constitution in its original context—who will also let its silence stand. Hopefully the conservative Philosopher-Kings won’t change their reasonable judicial philosophy and turn aggressive and progressive, when they occupy their seats of power.