Sunday, January 22, 2006


Roe v. Wade: Breaking Precedent in Order to Create It

Today is the thirty-third anniversary of Roe v. Wade, the Supreme Court decision that overturned a Texas abortion law and thus made abortion legal throughout the United States.

Since then, much has been said, and correctly so, about that landmark decision being a moral, social, cultural, and legal bastardization.

There's one aspect of the latter I would like to discuss, seeing as how it was brought up in conjunction with the Alito confirmation hearing: and that's the issue of it being precedent. If you were to listen to the pro-abortion advocates in the tyrannical feminist movement and their willing Senate Democrat (and a few pro-abort Republicans) acolytes, you would think that Roe v. Wade is such a firmly established precedent (even going so far as to call it "super precedent") that it is not only settled law of the land it is set in stone as though it were Holy Writ, perhaps even more so.

But the fact of the matter is that Roe v. Wade itself is arguably the most egregious violation of precedent in the history of U.S. jurisprudence.

Robert B. French points out:

"All previous abortion laws and rulings, for example, recognized penalties for abortion, the assumption that there is something--or someone--in the womb worthy of protection. Roe v. Wade, almost overnight, set up very broad conditions under which abortion would be allowed, while completely ignoring the question of the fetus' humanity."

He continues:

" In the thirteen original colonies, abortion was a crime under common law if movements of the fetus were "perceptible"; and this law remained when the Consitution was adopted. John T. Noonan, in his book A Private Choice, reminds us, 'What the framers knew to be a crime at common law in the states when they made the Consitution, they did not intend to legalize; indeed, the indeed the protection afforded the unborn at common law accorded with their view of the protection to be afforded persons. "

For example, there was a 1716 New York City forbidding midwives to Adminster abortifacients or even counsel women to have abortions. There was also a nineteenth century Conneticut statute forbidding abortion after quickening (which was understood as discernable fetal movement). There was also an 1849 Virginia statute that outlawed abortion throughout pregnancy, providing proof of pregnacy could be established.

French goes on to state that:

" The American Medical Association (AMA) crusade helped tighten state laws againstr abortion. By the end of the nineteenth century, all states protected protected the life of the fetus from conception through birth. The motivation for the enactment of these laws was the fact, some would say, that life is present from conception and does not begin at some arbitrary stage of pregnancy. The AMA report of 1871 stated the reason very simply: 'We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.'"

In our present age of unbridled judicial activism that grounds law on lies, we need "honest judges on the bench [who] call things by their proper names".

French states: "These [anti-abortion] laws remained in force, for the most part, until the 1960's when pressure for change began." (Is the Fetus Human? Eric Pastuszek ed. pp. 42, 44-47)

Furthermore, decisions regarding abortion matters were decided on the state level, not on the federal level.

The fact that Roe v. Wade was also a major violation of the "sacred" principle of stare decisis is lost even on conservative legal scholars and pundits. I suspect that this is part and parcel of the error most of them fall prey to that somehow if the individual states wish to legalize abortion, they are within their constitutional right to do so. If this is the case, they can legalize all crimes involving homicide if they so choose because all homicides are ajudicated at the state level, except those that involve more than one state, occur on federal property, or have national security implications (like an act of terrorism). As we have seen, our founders and framers viewed abortion as homicide.

On page 51 of the book cited above, the same Robert French points out:

"In a New York case, Judge Adrian Burke cited the Declaration of Independence in his dissent from a 1970 New York ruling that permited abortion on demand for the first six months of pregnancy. 'The Declaration,' wrote Justice Burke, 'has the force of law, and the constitutions of the United States and various states, must harmonize with its tenets....It was intended to serve as a perpetula reminder that rulers, legislators and Judges were without power to deprive human beings of their rights.' Burke referred to the 'natural law,' upon which the Declaration was founded, saying, 'The American concept of a natural law binding upon government and citizens alike, to which all positive law must conform, leads back through John Marshall to Edmund Burke and Henry de Bracton and even beyond the Magna Carta to Judean Law.'" (ibid pg. 51)

Justice Burke had it right here. The Constitution is not an isolated document and can never be treated as such. It must be interpreted in a way subservient to the Declaration of Independence which views our right to be a sovereign nation as an entitlement of the "Laws of Nature and of Nature's God". And abortion can never be reconciled by its rubrics and therefore is unconstitutional under ANY circumstances. Especially in regards to matters of human life, the Declaration of Independence has to be recognized as having the "force of law." To paraphrase (and recapitualte) James Carville: It's the Declaration, stupid!


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