Roe v. Wade: Further Proof (Part VI)

The pro-abortion movement was angered by the refusal of Justices to practice stare decisis: to honor the precedent placed forth by Roe v. Wade. Most Justices practice stare decisis to a degree, but remember liberal Justices did not practice stare decisis to honor their own rulings in Williamson for Griswold and Roe. All that being said, stare decisis did in fact save Roe. There was no other reason for Justices to uphold Webster v. Reproductive Health Services and Casey v. Planned Parenthood and not overturn Roe (O’Connor, Souter, and Kennedy saved Roe). Let’s face the ugly fact that Roe survived based on “compassion” towards women and not the law. What’s more, the trimester compromise founded in Roe was becoming unworkable as Sandra Day O’Connor noted “medical advances for safer late term abortions were colliding with earlier survival rates”. Abortion law, as decided in Roe, was becoming unworkable to have arbitrary divisions of pregnancy terms to govern a supposed Constitutional Right. For this reason, regulation for abortion moved from strict scrutiny in Roe (the state had to prove a compelling state interest) to a rational basis standard for abortion funding to a newly defined “undue burden” standard for abortion regulations after Webster and Casey. The burden of proof on the state is far less severe for “undue burden” than for a compelling state interest. This too is further proof that abortion is not a Fundamental Right. No Fundamental Right would be treated with such a low burden of proof. For instance, the reason hate speech is Constitutional is because freedom of speech is a Fundamental Right protected by the Court using strict scrutiny (a compelling state interest is needed to deny freedom of speech or other Fundamental Rights).

I would also argue that entitlements are not only not Fundamental Rights, but they are unconstitutional. Consider the Fifth Amendments Takings Clause which states the government can take private property only for public purposes with just compensation. Taxation for entitlement spending is taking private property (money) for private reasons (welfare) without just compensation. The Sixteenth Amendment passed the Income Tax and that would allow the government to take property (taxes) without just compensation. However, the Sixteenth Amendment does not allow the government to use property (taxes) for private reasons such as welfare. The federal government can use tax money for public things such as transportation, infrastructure, military, post office, etc. The Court has given state and federal governments more power by allowing them to take private property for private reasons if it also suits a public purpose (Kelo v. New London). But does welfare really suit a public purpose? As welfare distributions go up, the poverty rate remains the same. Welfare is not helping any public cause (i.e. more jobs and less poverty). For these reasons, I believe ALL welfare programs are unconstitutional.

Pro-abortion rights advocates objected to First Amendment restrictions placed on federally funded health centers. Federal law placed a gag-order on doctors not to discuss abortion options with their patients. The Court held this was legal because patients could get abortion advice at privately funded institutions. I personally disagree with this decision, but I also do not agree with the Court and pro-abortion advocate restrictions on informing potential abortion patients with advice on other avenues to pursue other than abortion does not place an “undue burden” on obtaining an abortion. Patients should have all options available to them to make an educated decision. Personally, I believe both sides of the abortion movement are guilty of trying to restrict the other sides First Amendment Rights. The Supreme Court weighed in on numerous First Amendment issues surrounding abortion with are outlined below.

In Bray v. Alexandrea Health Clinic (1993) pro-abortion rights advocates wanted to impose the 1871 Ku Klux Klan Act (which prevented violence against freedmen) against pro-life protestors. The Court did not concur because they saw the issue of freedman and abortion as completely mutually exclusive circumstances (one was racist and the other was a difference between morals and ethical standards). Besides, generally when there is violence at protests both sides are guilty of these actions (it takes two to tango). In NOW v. Joseph Scheidler (1994) pro-abortion rights advocates wanted to impose the RICO Act (used against racketeer and corruption for crime organizations against pro-life protestors. In this case, the Court incorrectly held the RICO Act could be used in some instances against pro-life protestors. In Madsen v. Women’s Health Center (1994) the Court held that a protest perimeter around individuals going to an abortion clinic was Constitutional even though the dissent argued that the protesters were not engaging in any illegal activity. In Schenck v. Prochoice Network (1997) the Court held that floating perimeters around individuals entering a clinic were unconstitutional, but fixed buffers at the entrance were legal. In Hill v. Colorado the Court upheld fixed perimeters around a clinic entrance but the dissent once again held that these laws were unconstitutional because they only applied to anti-abortion speech. Remember, the Court held that burning a cross in a minorities yard and Nazi parades are all legal forms of free speech subject to no restrictions, but abortion protests are subject to restriction. Congress passed the Freedom to Access Clinics Act to eliminate violence and coercion but what it really accomplished was to silence those trying to educate persons seeking an abortion on federal assistance mothers may qualify for and adoption information. Many state laws to this day exempt doctors and nurses from performing abortions or prescribing abortifacients on moral grounds. In Stenberg v. Carhart the Court narrowly upheld partial birth abortion when the fetus is moved into the birth canal to perform the abortion. In Gonzales v. Carhart the Court reversed course and said partial birth abortions were illegal. The Court did not overrule Stenberg, but said that Stenberg was more ambiguous then the federal statute in Gonzales.

Hull and Hofer’s book brings up every instance of anti-abortion violence and the killing of abortion doctors. No one should condone this, but to think the pro-abortion side of the equation is not guilty of violence is just mind boggling. After all, it takes two opposing sides to have violence at protests. Hull and Hofer make no mention of late term abortions of viable babies which to many is infanticide. Hull and Hofer make not mention about how abortion disproportionately targets the poor and minorities. Hull and Hofer make not mention of the profiteering off fetal tissue meaning abortion clinics have incentive to convince women to have unnecessary abortions. Hull and Hofer make no mention of how aborted fetuses are discarded in the trash like any other piece of garbage showing a complete and utter lack of respect for the prospect of life. Hull and Hofer are obviously biased liberals who decided to tell just one side of the story while convincing some they are neutral observers.

Hull and Hofer compared the Woman’s right to choose to when men got the right to a limited eight-hour workday. I do not see how these are equivalent in any sense of the imagination. Women also have an eight-hour workday but fathers have no say in the outcome in the pregnancy of their child. An equivalent act would be to outlaw the military draft or have more women fight in combat.

Abortion should be decided by the people of each state since it is not an enumerated power of the federal government in the Constitution. Just as the right for women to decide to have an abortion should not be a Fundamental Right, conversely the Court defining that life happens at conception would also be wrong. Even Justice Souter said abortion was not a Fundamental Right decided by Roe, but instead a power restriction on the states. I believe abortion can be a right (in some states) just as it is a right to brush your teeth. But it is up to the states to decide, not a nine-member Court. In her oral argument before the Court, Sarah Weddington who defended Roe, admitted “We are not here to advocate abortion. We do not ask this Court to rule that abortion is good, or desirable in any particular situation.” In other words, abortion is bad, but women should have the right to make decisions over their body even if they are bad. That is true most of the time, unfortunately abortion must consider the life of the baby. Abortion hardly sounds like a Fundamental Right. Fundamental Rights are something we can all agree upon that are good for humanity. In Weddington’s own words this is obviously not the case. Although the Court rejected assisted suicide as a Fundamental Right, by allowing abortion to be a Fundamental Right it opened the door to a slippery-slope of other issues. It would not surprise if euthanasia is eventually a Fundamental Right.

Finally, abortion has always been a polarizing subject in American politics, especially at the state level. However, it only became a divisive issue on the national level because of Roe v. Wade. Roe v. Wade has created a political litmus test for conservative and liberal politicians and choices for federal courts. It has thrown gas on an already polarizing political landscape in this country. This is why the Court should not answer political questions. By doing so they have not only mitigated state sovereignty but individual sovereignty. Pro-abortion advocates will claim that Roe increased individual sovereignty for women. That may be true for some women, but certainly not a plurality of women, men, and the unborn. It is hardly a victory for equal protection when one group of people garner more rights at the expense of others. Since the Court settled the abortion issue millions of people who were not alive when the Court decided Roe no longer have a say on how its state decides such political issues. This is not democracy, it is tyranny. The only way abortion should become a federal issue is if the Constitution is amended.

For the final argument against abortion it has been assumed that the pro-life argument is solely based on the fact that the fetus is a person and life happens at conception. But the Constitution has upheld hundreds of laws that do not pertain to people, but to property, corporations, and the environment. If destroying private property, wetlands, or wildlife is protected under our Constitution, then it is not a stretch to consider the Constitution may protect destroying a fetus.