The Supreme Court on Sex, Obscenity, and Marriage (Part III)

The 1973 case between Roe v. Wade decided by a 7-2 margin declared that a Texas statute making abortion illegal was unconstitutional based on the right of privacy (Griswold) guaranteed through the due process clause of the Fourteenth Amendment. The Court did not use the rational of applying the right of privacy by means of the Ninth Amendment as was also done in Griswold. Justice Harry Blackmun wrote the majority ruling and obviously was not influenced by the opposing argument wanting a right to life for a fetus. Justice William Rehnquist and Byron White wrote dissenting opinions. Rehnquist argues that the framers of the Constitution were not aware of abortion issues in 1789 (hence abortion issues have no federal jurisdiction). Connecticut placed the first abortion laws on the book in 1821. When the Fourteenth Amendment was drafted in 1868, there were over 30 state and territory laws limiting abortion, 21 of which remain on the books today. The Roe decision invalidated hundreds of laws and statutes in all 50 states. Like Buck, Roe is a discriminatory inhumane act against fetuses. Margaret Sanger, the founder of Planned Parenthood started her mission of population control (not just birth control) back in 1914. Both Roe and Buck are population control measures. Today, Planned Parenthood sells aborted fetal tissue to research outlets. That is not a crime, but what is a crime is that Planned Parenthood has a monetary incentive to influence women to have an abortion. This is analogous to having a sitting Senator also being a lobbyist for Big Oil companies. This is a conflict of interest. And, most importantly, if first term fetuses are not considered living persons then why are their organs and tissues needed to cure ailments in humans that synthetic drugs cannot? Premature babies live at 20 weeks and some born at 13 weeks live, but only for a short time. Since Liberals declare themselves the Party of science it should be apparent to them that a baby’s (fetus) nervous systems is developing in the first trimester and they therefore have the ability to feel pain. An abortion (with the absence of a crime or health issue to the mother) is analogous to a spouse killing their partner to avoid a divorce. There are better solutions than to kill a fetus – such as adoption. If the government or Planned Parenthood placed more time and emphasis into the subject of adoption then maybe there would be little need for abortions. It is ironic that Justice Brennan talks about “state government intrusion” in many of his opinions but the Court legalizes, mostly unnecessary, medical procedures for sterilization and abortion. What can possibly be more federally intrusive governance than the decisions for Korematsu, Buck, and Roe?

The 1986 case Bowers v. Hardwick, in a 5-4 decision, the Supreme Court upheld the constitutionality of a Georgia sodomy law. Although the law did not specify any difference between consensual homosexual sodomy and heterosexual sodomy, the majority decision of the Court based its decision on the former. Justice Byron White wrote the majority opinion stating “to claim that a right to engage in such conduct is deeply rooted in this Nation’s history and tradition or implicit with the concept of ordered liberty is at best, facetious”. In other words, in the past the Court has provided “substantive due process” rights not listed in the Constitution if they were “deep rooted in American traditions”. Obviously, homosexuality was not an American tradition (nor was the right to an abortion or contraception). In fact, homosexuality was taboo in American and world history and is still taboo to most religious Americans. However, with social changes in society occurring over time, homosexuality is much more tolerated today, but its acceptance in not deep rooted in American history. Justice White also warned about the potential implications of going down the path of a “slippery slope” when it comes to ruling on other sex laws. Justice Harry Blackmun wrote the dissent and did not understand why the majority opinion focused solely on “homosexual activity”. Justice John Paul Steven’s dissent cited Griswold v. Connecticut and Eisenstadt v. Baird. In Griswold the Court found a Connecticut statute unconstitutional that denied contraception to married couples based person’s right to privacy. Although privacy did not exist in the Constitution the Court made up this right to rule the Connecticut law unconstitutional. In Eisenstadt the Court conversely found a Massachusetts statute unconstitutional that denied contraception to unmarried persons based on the equal protection clause of the Fourteenth Amendment and the right to privacy.

There were a couple of interesting aspects to the Bowers case. First, Georgia District Attorney, Lewis Slaton, did not prosecute the sodomy charge because he felt the law should not be used to prosecute consensual sex. Secondly, Blackmun revealed that his openly gay clerk, Pamela Karlan, wrote his dissent. Thirdly, most states invalidated their sodomy laws in the years following the Bowers decision (even though the law was upheld – social changes influence states to change laws). By 2003, only 13 states continued to have sodomy laws on the books. And finally, it was extremely rare when sodomy laws were used against consensual sex or in the privacy of someone’s home (no one would know if the act was being done in privacy). So it begs to question: Why did the Supreme Court even rule on this case since there was no conviction or punitive damages? Why would Blackmun let a gay clerk write the opinion? Deciding cases on emotion and not the law is a serious offense in our judicial system. Finally, why is the Court deciding cases on issues where State statutes and laws are already evolving to keep up with social changes in our environment (Let alone the Court has no standing in sodomy cases as Justice Harlan points out in Roth on obscenity)?