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Why Roe v. Wade is wrong!

By: Viet71 (Diary)  |  February 17th, 2010 at 12:20 PM  | 

RESIZE: AAA

Roe v. Wade (1973) amended the Constitution.

It did so by creating a novel “Right of Privacy” into which government may not intrude.

Now, I’m ALL for privacy.  ALL for keeping government out of my life.

Problem is, the Constitution NEVER ONCE uses the word “privacy.”  Harry Blackmun, who wrote the majority opinion in Roe, simply INVENTED a zone of privacy — made it all up.

For that reason alone, Roe v. Wade was wrongly decided.  William Rehnquist, who dissented, got it exactly right.  A majority of nine old white guys (hey, I’m in that camp!) simply imposed their will on the American People.

So, Roe v. Wade was wrongly decided on constitutional grounds.

It was also wrongly decided on other grounds.

First, Blackmun ASSUMED that a fetus was not viable during the first trimester of pregnancy.  I wish Harry could have seen today’s MRIs.  Modern technology makes Blackmun’s assumption ridiculous.

Second, Blackmun clearly believed he was doing good by removing the abortion debate from the political arena.  His papers show this.

To put the matter in perspective:  By 1973, a little over a third of the states either flat out permitted abortion or placed very few restrictions on abortion.  Alabama, for example, permitted abortion to save the life of the mother.

By removing abortion from the political arena, Roe v. Wade ended REAL debate over abortion — which is very BAD.  This country was FOUNDED on the premise of wide open political debate.  It’s no accident that the First Amendment is the FIRST Amendment.

Oh, sure, a politician today can say he or she is pro-life or pro-choice.  But such chatter is largely just political posturing.

Footnote: Some say they oppose Roe v. Wade (as I do) but are pro-choice.  For these folks, the rubber never meets the road.  I’d prefer that they and the rest of us be given the vote on abortion, state by state.

That’s CLEARLY the sort of vote the Founders envisioned.

Note to lawyers and others: If you  want me to go into more detail, I’ll be pleased to do so.

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COMMENTS

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  • Scope

    I’ve brought up Gay Marriage elsewhere, and, something like 31 states that have had it on their ballots, voted against it. Even freakin’ CA. In the current atmosphere, I would bet that those same states would vote against abortion in most cases, especially late term butchery and outright murder.

    • Viet71

      n/t

  • Viet71

    Read this diary!

  • Leopard1996

    Pro the choice that if I believe that abortion should be legal, I move to a state that allows it, if I don’t I live in a state that outlaws it, but I also factor in other things, and eventually economic laws take over, and summary abortion goes bye-bye.

  • Viet71

    I am secretly pro-choice.

    I think Roe v. Wade was wrongly decided.

    But I’m not about to tell you how to lead your life.

    Thanks.

  • Menlo

    Even the dissenting judges were and are wrong. A matter of equal protection should not be up to the majority to decide for the minority. Equal protection needs to be offered to the unborn as well as the born.

  • Scope

    that you were personally pro-life. Why the switch? Leopard has openly said that he is more Libertarian than anyone else here on Redstate. You are making me believe that you are what ever someone wants you to be. Please will you explain that.

  • Doc Holliday

    maybe you should read it again Scope.

  • Doc Holliday

    remember to use “reply to this” :)

  • Viet71

    I hate abortion.

    But I refuse to tell you what you can or cannot do.

  • Doc Holliday

    I actually have changed positions from time to time because I am so close to the line on it. I know I am against any federal funds or state funds being used because that IS telling people what to do.

    I know I am against abortion but I am realistic enough to ask hard core pro-lifers how they would implement a total ban. I can picture something like prohibition but with much uglier consequences.

  • Viet71

    The dissenting Justices were out to lunch.

    But they got it more right than Blackmun.

  • Viet71

    could be friends.

  • Scope

    because before Roe v Wade abortions were taking place in back alleys with dirty procedures. Then there was alot more risk of death, not only to the child, but, to the mother as well. This was taking place even with a much more moral society than we live in now.

  • Doc Holliday

    there have always been abortions. Mostly when something is illegal it is more dangerous.

    IMHO, we need to find a way as a society to reduce abortions but keep our humanity and keep our liberty. In the end we all answer to God, laws are man’s attempt to do what is right but we don’t get the final decision. We can’t end abortion, even if we ban it; just like we have never been able to end murder or theft.

    to sum it up, I am torn as well.

  • olsmithie

    1988 support critics who say the court was legislating, rather than interpeting the constitution.

    http://groups.csail.mit.edu/mac/users/rauch/seamless/articles/roe/woodward.html

    Bork gives a very good case for the above.
    http://plato.stanford.edu/entries/privacy/
    Notice that the supporting cases the article mentions supporting the 1965 ruling on privacy occurred 25 years after the ruling, not precedents before the ruling.
    Love it or hate, Roe is bad law from the get go.

    Regards

  • Menlo

    It was a lie, and law enforcement was and still is wrong to obey it. It is not legitimate law and should be ignored.

    Whether there is a right to privacy is irrelevant because abortion is not “private,” certainly not enough that an infringement on the child’s rights doesn’t warrant an infringement by law enforcement.

    Telling a person how much his or her toilet can flush IS an unwarranted violation of privacy.

  • Viet71

    Douglas legislated from the bench probably more than any other Supreme Court Justice. As a Yale law professor, he came to view the law not as valuable process, but rather as a tool to achieve a desired outcome.

    In this respect, he was the complete opposite of William Rehnquist, for example. He should have stayed a mere lawyer.

    Douglas wrote the majority opinion — a rambling affair — in Griswold v. Connecticut (1965), which struck down a ban on the sale of contraceptives to married individuals.

    With that opinion, he lost his friendship with Hugo Black, a staunch supporter of the First Amendment. In his Griswold dissent, Black lamented the legislative path the Warren Court was taking.

    Unfortunately for Black, he was largely to blame. Reason: He wholeheartedly subscribed to the notion that an UNSPECIFIED set of protections in the Bill of Rights was “incorporated” in the Due Process clause of the Fourteenth Amendment — and thereby made applicable to the states. Black legislated with the best of them.

    The sorry state of affairs in this country today is chiefly the product of Supreme Court Justices legislating from the bench and imposing their liberal version of conformity on the states.

    It’s not at all what the Founders intended.

    Wiliiam O. Douglas was a smart guy. So smart, he figured he knew better than the Founders. A classic liberal.

  • kyoufuu

    The constitution doesn’t mention privacy because such a right doesn’t exist. The necessary rights to protect from intrusion by the government into our lives are covered by the protections from illegal search & seizure as well as the self-incrimination.

    And like you, I am pro-choice, but hate abortion. I’d much rather tear down the liberal machine that makes abortion occur so frequently than to argue on the morality of it. One will think it right or wrong for whatever reason, and there is little that can be done to change minds either way.

  • Achance

    a much younger and presumably fertile woman. That fact as much as anything else probably explains the penumbras and emanations he found in Griswold. The whole case was a put up deal anyway. The CT law banning sales of contraceptives hadn’t been enforced. It was all a set up to take a case up to get a federal ruling on contraception as the birth control pill was coming into widespread use. It is interesting and ironic that the case intended to make it easier for women to avoid pregnancy laid the groundwork for Roe.

  • Menlo

    You can’t pin all the blame on the few on a court. It is as much if not more the fault of lawmakers, law enforcement officials and executives, and lower judges for obeying the court and continuing to obey it, while calling their rulings “law.”

  • Achance

    the Executive Director of CT Planned Parenthood.

  • Viet71

    You’re absolutely correct about his affairs de la coeur.

    Thanks for the factual detail — much of which I did not know.

  • zroxx

    A minor but important correction, the law was not specific or limited to a ban on sales of contraception, the law in question made use of contraception punishable by fine and/or imprisonment; see here:

    Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.

    Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.

    If this legislation was never enforced prior to the arrest and conviction of Griswold, it would be interesting to know why the authorities suddenly opted to enforce the law, in his case, for giving “information, instruction, and medical advice to married persons as to the means of preventing conception“?

    Much fun is made of the penumbras and emanations language but the opinion does utilize previous court decisions in demonstrating that the court has found “rights” not specifically covered by the Constitution:

    The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

    I’m interested in a well reasoned argument as to why Griswold was decided incorrectly – why the logic used in the opinion does not actually show that contraceptive use by married couples can be derived from from more specific Constitutional language similar to the other examples given. And that could include a discussion of why the opinion itself was improperly argued but still acknowledge that American citizens are protected by the Constitution regarding their use of contraception via some other line of reasoning not taken by the opinion.

    That said I’d also be interested in seeing someone advance an argument as to why the Constitution provides no protection whatsoever against investigation of and criminal prosecution for contraceptive use between married couples.

  • Viet71

    the bedroom. My preference would be for the citizens of each state to make the call through their legislatures and courts.

    That’s what happening with gay marriage, and the process is healthy.

    Here in Connecticut, gay marriage is permitted as the result of a Connecticut Supreme Court decision. No one minds much. Consenting adults, etc.

    But if some public grade school teacher tries to teach gay and lesbian sex to a bunch of fifth graders, all hell will come down.

    The gays and lesbians (apart from the activists) are cool with the way things stand in Connecticut. I know some gays and lesbians who say all they want is marriage equality and to be left alone.

    On the other hand, if the U.S. Supreme Court ever issues a Roe-type ruling on on gay marriage, the activists will be furiously lobbying school boards to include gay and lesbian sex in the curricula. And the school boards will be forced to cave.

  • E Pluribus Unum

    Not me. I guarantee if I lived up there, I’d get thrown out of some places for agitating a state constitutional amendment to throw out the ruling by those bunch of mullahs.

  • kyoufuu

    But I am also against judicial activism. I don’t really like the ruling on gay marriage. But there really hasn’t been anyone crying foul over it. I’m also from CT, and I think that the civil unions were just fine. To be honest, though, I’m still unable to wrap my head around the legal difference between a civil union and a marriage under the law. It’s not like forcing gay marriage requires religious institutions to practice the same.

  • E Pluribus Unum
  • Viet71

    live and let live sorta guy.

    But I’d fight like hell to defend your right to protest and agitate.

  • Viet71

    to this extent: Connecticut judges are nominated by the governor and appointed, to 8-year terms, by the General Assembly, whose members are chosen by the citizenry.

  • tcgeol

    If we looked purely at effectiveness to indicate whether or not any given activity should be illegal, nothing would be illegal. Murder would be a wide open field.

    Frankly, if someone tries to kill their baby, I have much less concern if something happens to them as a result. Not that I don’t have some compassion, but they knew what they were doing and made a choice.

    Nice to see you again, by the way!

  • Doc Holliday

    I totally understand your point. I am against abortion in that I find it abhorrent. I know that adoption is almost always a better choice. I am also as concerned for the individual rights of the baby as I am the individual rights of the mother, perhaps more.

    My point is that good intentions can often cloud the view of how a ban would work, and what type of bad outcomes might occur.

    One thing I rarely hear people discuss is that every prospective abortion “patient” has already decided they don’t want their baby. So you have to start from the point that the woman does not want the child. So if this is stipulated, what kind of mother would the woman be?

    The issue if very complicated as well as emotional. At this point my main goal is to reduce abortions. I think reducing abortions can be achieved but only if people work together and not look at the issue as “its my way or the highway”.

  • Viet71

    Maybe Connecticut voters will elect a bunch of folks to the General Assembly who will shake up the Connecticut Supreme Court, to effect an overturning of the gay marriage ruling.

    Ultimately, it’s up to the citizens whether this ruling stands or falls.

    And that’s the way it should be.

  • Viet71

    does not, in one important respect, elevate gay marriage to the status of conventional marriage.

    The IRS does not recognize gay marriage — meaning gays and lesbians cannot file joint returns or claim marital deductions.

  • kyoufuu

    And truthfully, it’s the least of my concerns. I’m indifferent on the issue. I’m mostly concerned with taxes and government spending, especially at the local level.

    But I don’t trust the voters of this state to ever vote out the democratic majorities in Hartford.

  • Scope

    You can profess your love and committment to another person without being married. You can leave whatever you want in your will to anyone you want. You can choose anyone you want as your power of attorney. I never did understand why gays couldn’t visit each other in the hospital, I think that baloney.

    Can gays have their spouses covered under their group medical plans?

    BTW Viet71, Years ago I spent much time in Westport with an aunt that lived there, not too far from where Martha Stuart lived. That was pre-felon days.

  • Achance

    We can start there. Because if it is, then abortion is likewise a federal question and while Roe may be wrongly reasoned, it is not wrongly decided as a federal issue; a position most Republicans and conservatives do not accept.

  • E Pluribus Unum

    For some reason my [Recommend] button is not functioning on this page, or i would recommend.

  • Scope

    for voters to vote on? I believe something like 31 states did it that way, and, they all voted no.

  • E Pluribus Unum

    But even with judges appointed to 8 year terms by the governor, that there decision is a no go. That’s so far removed from the democratic process that it does not count.

    My ‘live and let live’ attitude says “whatever the state Constitution and duly enacted laws say goes”

  • E Pluribus Unum

    I mean, technically, federal judges are the same thing, other than the lifetime appointment. Picked by a president, approved by the Senate.

    And yet you see the condition of the federal judiciary.

  • hickorystick

    for deciding life questions. It can be closed to the Public. The applicant for an abortion must state why she wants the abortion, and how she came to be in that condition. She should also state the Fathers name. She should state whether she was intoxicated or not when conceiving. She should show she has received accredited counseling, which would include what characteristics the baby would likely have and as much as can be known abouth the child. One abortion only should be grantable. If granted, each woman would be allowed a case to be sealed, but this priveledge to be given only one time. It should be understood that the life she carries is seperate from the Mother. As big a screw-up a parent can be, it is not pre-destined the child will be a screw-up, and could actually turn out to be a person that adds a lot to society, and loves life him/her self.
    In short, abortions could be legal, it doesn’t mean it has to be easy. it doesn’t mean the child has no value or individuality. The court should at least make the Mother think through what she is doing.
    The child should have at least as many rights as an illegal alien. Even an Illegal Alien has a right to a deportation hearing. Before throwing a kid out f school, there is a process to go through. It is pretty basic to our western tradition, let alone our American heritage. Due Process is extended even to Sea-Lions going through the Ballard locks, devouring another ‘endangered’ species, Pacific Steelhead Salmon. I don’t know by what process we determine an unborn child is not human, or does not deserve rights or due process. To leave it to an individual woman to be judge and jury, who may not even be in her right mind, is counter-intuitive and counter-cultural. There is nothing that establishes this as being the best process. During frontier days, a hobbled child often would be left on a chair, or set outside on a porch in the cold, to let nature take it’s course. We now think of that as cruel, and illegal (we not including our current President, but I won’t dither). Cultural conceptions change, history shows that to be the rule. I don’t think it would hurt to force the mother to think through what she is doing.

  • zroxx

    I cannot find the reason given by the court for accepting the case in the first place – are such reasons documented publicly? From one of the concurring opinions, however:

    The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
    [...]
    To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.
    [...]
    The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family – a relation as old and as fundamental as our entire civilization -surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

    Plaintiff felt the CT law abridged their Constitutionally protected rights and asked the court to decide. Court evidently felt this was a valid question and rendered a decision. It was a state law but the question wasn’t regarding violation of the state constitution but violation of the U.S Constitution. Why shouldn’t the court look at it from that angle?

    If there is nothing in the U.S. Constitution that can be reasonably construed as protecting a man from being investigated and imprisoned by any local government authority for wearing a condom during sex with his wife, then it would certainly shift my opinion of the value of the document.

    The connection with abortion really depends on whether you believe “personhood”, citizenship and Constitutional protection begin at conception – if so then abortion is homicide as opposed to medical procedure and therefore certainly becomes a federal question regarding depriving one of their own life without due process. It was my belief that most republicans and conservatives do consider abortion to be murder so it would surprise me to learn that they do not see it as a federal issue with Constitutional implications, but maybe I misunderstand you?

  • hickorystick

    more then once for it to show.

  • E Pluribus Unum

    It’s a good thing I trust software about the same as I trust Obama.