Sunday, October 15, 2017

Can Roe v. Wade be Overturned?

Can Roe v. Wade be overturned? Of course. But to do so there must be some “erosion” to the principles in which Roe was decided to make it possible. Actually, Casey v. Planned Parenthood decided in 1992 may be the actual precedent that needs to be overturned. Casey upheld Roe, but revised the initial trimester conditions held in Roe. Below are the Supreme Court precedent that can be considered to overturn Roe.

First, the Court banned Partial Birth Abortion (Gonzales v. Carhart – 2007). This did not end abortion, but it pointed out the horrors and dangers of such procedures to the mother and how it “kills” a “viable” baby by “crushing” its skull and to vacuum out “brain matter” so the baby’s head can easily pass through the cervix. This does not paint a very good picture of abortion, nor does it paint a very picture of those who support these types of procedures. Partial birth abortion methods did nothing but bring more “substantial and continuing criticism” to the business of abortion. Carhart is significant because the Court is on record against some form of abortion – that is a start in creating useful precedent.

Second, the precedent that may be the most revealing is Washington v. Glucksberg in 1997 (also to a lesser degree Reno v. Flores in 1993). In this case, the Court refused to elevate “the right to die” encompassed by “assisted suicide” to a fundamental right because suicide was “not deep rooted in American history or tradition”. Nor is “the right to die” an “implicit in the concept of ordered liberty” (Palko, 1937) and “neither liberty nor justice would exist if they were sacrificed” (Glucksberg). This decision, without question, eroded the foundation of Roe and Casey because abortion is certainly not deep rooted in American history or tradition. This standard was never applied to either Roe or Casey when they were decided.

Third, the liberal progressive judges in their righteousness of obtaining social justice may have given the conservative sect of the Court ammunition to fight Roe and Casey. In Lawrence v. Texas decided in 2003, the Court overturned the 1986 Court decision Bowers v. Hardwick. Both cases dealt with statutes against homosexual sex (sodomy). In Bowers, the Court said that homosexual sodomy was not a fundamental right and upheld the Georgia law. In his dissent to Lawrence, Justice Scalia astutely summarizes the majority opinion criteria to overturn a case. A case can be overturned if it meets the following “emerging awareness” criteria: “1.Its foundations have been ‘eroded’ by subsequent decisions; 2. it has been subject to ‘substantial and continuing’ criticism; and 3. it has not induced ‘individual or societal reliance’ that counsels against overturning.” Scalia points out these same “emerging awareness” principles can be used to overturn Roe. 1. Glucksberg and even Carhart has “eroded” Roe’s foundation; 2. No question that abortion faces “substantial and continuing criticism” (for instance, outrage over partial birth abortion); and 3. Roe’s fundamental “right to abortion” has not been precedent cited in any decision other than abortion cases (other aspects of the decision may have been cited, but not the fundamental right to abortion that the core aspect of decision is built upon). Bowers was cited in cases dealing with sexual morality cases such as public indecency. By overturning Bowers sexual moral behavior can now be used to legalize (prostitution, incest, obscenity, polygamy, etc.). Overturning Bowers is a “massive disruption of the current social order” but overturning Roe “would simply have restored the regime that existed for centuries before 1973.”

Can Roe and Casey be overturned? Yes, and the liberal Court would get what it deserves. The liberal sect of the Court is applying social justice and not the law. Liberal rulings enable the Court to apply any imaginary principle or invent any fundamental right it wants to get the decision they want. In Lawrence the court does not elevate homosexual sex as a fundamental right, but says homosexual sex is “an exercise of their liberty”. That is very broad and ambiguous. Liberty can be restricted and is restricted all the time. Private sexual liberty is also restricted. For instance, polygamy, incest, or prostitution. This is why the Lawrence decision makes no sense, it makes it sound as if liberty cannot be restricted by the government for any reason. This is not the law, but a fabricated fascination the Left calls the law. Wouldn’t it be ironic if the Court could use the Left’s fabricated fantasy they call the law in Lawrence v. Texas against them to overturn Roe and Casey? Lawrence v. Texas could have been invalidated based on the “equal protection” clause or even the “due process” clause without elevating a fundamental right. But this is not sufficient to Leftist judges who have an agenda and answer to constituents and not the Constitution.

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