Celebrating the 40th anniversary of Roe v. Wade and 55
million human deaths(4). Roe V Wade - Supreme Court Decision
Synopsis: Roe v. Wade(1). More Supreme Court Resources(2).
THE SUPREME COURT and Abortion After Roe v. Wade
(3). Abortion graphics(5). Supreme Court Decision
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|Roe V Wade - Supreme Court Decision - Synopsis: Roe v. Wade(1). More Supreme Court Resources(2).
THE SUPREME COURT and Abortion After Roe v. Wade
(3). Celebrating the 40th anniversary of Roe v. Wade and 55 million human deaths(4). Abortion graphics(5). Supreme Court Decision
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Roe v Wade library
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|1. Synopsis: Roe v. Wade
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Synopsis: Roe v. Wade
The true story of the Roe v. Wade case is a story about lying woman, false cries of rape, women seeking vengeance and male judges that -- despite the work of a few activist justices with little care for the Constitution -- made, on the whole, a reasoned solution to a nearly impossible problem.
Norma McCorvey, a young woman, got pregnant in 1969. She lied and -- to help get an abortion -- she claimed she was raped. False claims of rape were a too often occurrence among women seeking legal help in this period of time. Some sick women would go so far as to send men to jail by falsely claiming rape. Norma was in Texas in 1969 and Texas would not allow an abortion, except for cases when the mother's life was in danger. So, despite her lie, she did not get an abortion. Pixie (Norma McCorvey's nickname) had the baby and a lawyer by the name of Henry McCloskey, Jr. helped her place her baby -- a child she never saw -- with a family. McCloskey, from the University of Texas Law School, introduced two young female lawyers to Pixie. One was Sarah Weddington, who -- while in her early twenties -- had already gone to Mexico to get an abortion of her own. The other was Linda Coffee. Both of these women lawyers convinced Pixie help them advance their legal careers by taking her case to court. These woman lawyers wanted to fight what they perceived as the basis of the Texas law, that allowed abortions only if needed to save the mother's life. Killing an unborn child (a fetus) was -- to Pixie's lawyer handlers -- strictly a woman's choice, a fundamental right of a women to control her own body, regardless of what she did with her body -- including killing. Pixie became "Jane Roe" and her attorneys sued Henry Wade, the district attorney of Dallas County, Texas. With this case, Roe v. Wade, abortion entered the national political agenda. Sarah Weddington became a media celebrity. McCorvey, as she matured, began to realize that the support she had given to the advocates of abortion on demand were wrong. I'm not sure what happened to Linda Coffee. But, the decision in Roe v. Wade has become one of the most grossly misunderstood cases in America's history. It did NOT legalize abortion. It did not confirm a women's right to abortion strictly by her own choice -- except in the first three months of pregnancy. The case began with a lie, and its ramifications are distorted by still more lies.
To understand what Roe v. Wade really did it is necessary to consider legal reasoning and other cases subsequent and prior to it.
Legal reasoning is what judges do to justify their decisions. Sometimes their legal reasoning begins with the laws and the Constitution and previous cases. From these they develop a decision on the case. These types of judges are called Constructionists. For other -- less honorable -- judges, legal reasoning begins with what decision they want to make. Previous court decisions, the law and the United States Constitution are merely used as tools to be twisted and interpreted to justify the pre-made decision. For these judges, legal reasoning becomes mere sophistry, an effort of diving auras and penumbras from past decisions and the Constitution. Stephen Breyer is an example of a sophist judge, as is Ruth Bader Ginsburg. Stephen Breyer openly admitted, in court, during the Gore v. Bush election arguments of 2000, that he was biased towards Gore. The prejudices of this judge, who would ignore the Constitution to help his pal Al Gore can be read about right here. In polite terms, Judges like Breyer and Reno -- who are also the richest judges on the Supreme Court -- are referred to as activists.
Just one month before the Court decided to hear Roe v. Wade the Justices had upheld a Washington DC statute that prohibited abortions, except for those that were needed for the preservation of the mother's life or health. But the vote had been close (5-4) in this United States v. Vuitch case. Chief Justice Warren Burger, John Harlan, Byron White, Harry Blackmun and Hugo Black voted for the DC law as not being too vague. William Douglas dissented because he thought the term "health" was too vague. By the time the Court actually got to hear Roe v. Wade two of the Justices who had been in the majority in Vuitch had retired, Harlan and Black. Neither of them were advocates of killing fetuses at the whim of any pregnant woman at any time. Now, until new Justices were appointed, there were only 7 Justices on the Supreme Court, a majority of whom had been willing to allow abortionists like Vuitch to practice. A few years later Vuitch managed to kill a 17 year old girl during one of his abortion procedures aimed at preserving the life or health of the mother. For more information on this butchered abortion click here.
The depleted Burger Court heard arguments on Roe v. Wade December 13, 1971. Burger asked if this wasn't the same as the Vuitch case. Weddington explained she felt the Texas law was more restrictive than the DC law, that it burdened poor women who could not go to more liberal states to get their abortions and that Texas law made no sense. Texas law looked at abortion done by a doctor as murder, but self-abortion by a woman was never considered a crime. Jay Floyd, the assistance attorney general of Texas argued that women already had a choice on what they would do with their bodies, but that choice was exercised when they participated willingly with a man to create a child. He also said that women made a choice when they decided to live in Texas, under the laws of Texas. Justices Thurgood Marshall and Potter Stewart got into the fact that Texas was somehow considering the fetus a human life and -- if it was -- how could they allow self-abortionists to go unpunished. Jay Floyd did not have a persuasive answer.
In fact, neither side had convincing arguments and the Court eventually decided to wait until the court was at full strength and then asking the two sides to come back with better arguments. However, during the Court discussions, William Douglas noted that he felt the Texas law invaded a "women's right to privacy" and William Brennan and Stewart agreed. White pointed out, correctly, that there was no right to privacy in the Constitution. This did not persuade those justices who saw clearly, in the foggy penumbra and dazzling emanations from the Constitution, the hidden shadows of a "women's right to privacy". For a while it appeared that the seven Justices might find for Roe, on the basis of the vagueness of the Texas Law (even though most wanted to decide against the law on the basis of it violating the unwritten shadows of "a women's right to privacy." By this time Rehnquist and Lewis Powell were on the Supreme Court and they also felt the case should be reargued. Despite the rage of William Douglas, whose passion was afire with the radiations from the Constitution's shadowy penumbra, the majority of Court decided it would be best to wait for a full 9 Justices to hear the case. Douglas was beside himself. He was sure Rehnquist and Powell would not be able to see the penumbras in the shadows. (Note: If all this seems silly, I agree. But "shadows", "radiations" and "penumbras" are really the words the Justices used to justify this decision -- as well as others. Finding basic rights in shadows, radiations and penumbras is what is called (un-laughingly) legal reasoning by Judges who cannot find anything written to support their decisions..
On October 11, 1972 a full court heard the case. Sarah was back to argue, but Jay was replaced by Robert C. Flowers, assistant attorney general of Texas. Both lawyers were barraged with the question "is the fetus a person." It was clear that the answer to this question -- which neither side could give -- would be the key to the court's decision. And the court did base its decision on its own Solomon-like definition of different phases during the life of a fetus.
Blackmun wrote the final opinion. It struck down the abortion law, but not on the basis of vagueness. The ethereal "right to privacy" prevailed, even though the Justices could not agree on where it was. Blackmun wrote, "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." While the Justices may have been smoking something while they were seeing things in the firmament, they went on to make some intelligent decisions. First of all, despite the lies of feminists, who chose statements like that above removed from the context of the entire decision, this case did NOT legalize abortion on demand, except during the first three months of pregnancy, when a woman and her doctor would be the only decision makers. During the last three months of pregnancy each state, like Texas, had the compelling interest in preserving the life of the unborn. During the middle three months "the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health."
So, despite the ravings of the anti-life crowd, Roe vs. Wade made it clear that states could regulate abortions, to protect the unborn child, during the last three months of a woman's pregnancy. Dishonest lawyers and feminists have actually argued that abortion at birth (so-called partial birth abortions) were allowed by Roe v. Wade. It's hard to know of these arguments were spurred on by ignorance, dishonesty, or too much of what the Supreme Court Justices were smoking when they saw the shadowy radiations in the Constitution's penumbras.
Next: see Roe vs. Wade getting further restricted at Last Breaths of Roe v. Wade.
More Supreme Court Resources
Storm Center, David M. O'Brien. Norton. Fifth Edition Click here for Storm Center, price $23.45
Reason in Law. Lief F. Carter and Thomas Burke. 2002 Longman. Sixth edition. Click here for textbook binding, 1999 (fifth edition) at $37.40 - used books less
The Federalist Papers. Hamilton, Madison and Jay. Click here to get the federalist papers downloaded for just $2.65 Click here for a paperback copy of the Federalist Papers for $5.35
Justices of the Supreme Court - LII
Supreme Court Justices - Bethany Van Alstine's Page
Supreme Court Justices - Oyez Project
USA Today - Facts About US Supreme Court Justices
Members of the Supreme Court of the United States
Portraits of Supreme Court Justices
PoliSci.com - Supreme Court Justices
Roe's Justices were clearly worried about publishing their opinion. While it was politically correct one for 1973, they had needed to take the entire concept of legal reasoning to bizarre lengths, using the Griswold case's concept of reasoning by séance. The Griswold Justices actually (this is NOT a joke) saw rights in radiations from the Constitution that produced shadows, in which certain unseen emanations were sensed by the Justices (probably as they held hands in a circle). In Roe, these unseen emanations convinced the judges that the Constitution assured a woman's right to privacy. This privacy right allowed a woman the right to an abortion during the first three months of pregnancy. After leaving their séance the Justices in Roe abandoned the sensing of shadows and used logic. They reasoned that by the time a fetus was viable (defined as 6 months) the fetus was more like a person and should not be killed, if a state had a reason to want to protect the fetus's life.
Still, the judges worried. Would there decision be politically correct enough? How would the public feel about their curious mixture of using mentally defined shadowy imagery with intelligent logical reasoning. Luckily, on the day they released the decision, President Lyndon Johnson died, so public attention was less focused on the Roe v. Wade decision.
While seven of the Justices literally used smoke (shadows) and mirrors to make their "right of privacy" decision, two were immune to the activist 7's radiations found in the 9th or maybe the 14th amendment. White and Rehnquist both voted against the decision. Rehnquist's dissent especially irritated the politically correct group -- never great believers in the Constitution as written. He noted that the worst fears of the founding fathers had now come true. The Supreme Court had now become a "super legislature," and was writing laws. In Federalist 78, Alexander Hamilton had assured the colonists that this would never happen.
But, judicial activism run amok was not just a feature of Roe and Griswold. As far back as 1857, in Dred Scott v. Sandford (1857) (Click here to learn more about Dred Scott) politically correct Justices of the day had scanned the Constitution and define black people as not being persons, just as -- over a hundred years later -- Roe's justices defined fetuses as not being people.
It was clear the question of abortion in the United States would not end with Roe. Folks who were sure human life began at conception could not accept the killing of life, even if it was only 3 months through gestation. Those who saw the fetus as nothing more than a mole on a woman's nose, would never stop until they achieved abortion on demand -- for every month of gestation, including partial birth abortions.
And the battle did go on. The Burger Court stood firmly behind their shadowy emanations and struck down state challenges to their shadowy emanations. But, in the decade after Roe, Congress passed several laws that slowed down the abortion-on-demand people. In Harris v. McRae (1980), and Bowen v. Kendrick (1988) the court narrowly upheld two of the congressional laws, preventing taxpayers from being required to pay for non therapeutic abortions and preventing the use of taxpayer funds to support abortion counseling. But, even after séance justices Douglas and Stewart retired and were replaced by John Paul Stevens and Sandra Day O'Connor, the court reaffirmed its basic Roe decision in City of Akron v. Akron Center for Reproductive Health (1983). The City of Akron wanted women to wait 24 hours and sign a consent form before getting an abortion. The Supreme Court said "no" to this and another Akron City requirement that fetal remains be disposed of in a humane and sanitary way.
In 1986 President Reagan's solicitor general, Charles Fried, in support of Pennsylvania Governor Richard Thornburg greatly aroused the "fetus as a mole" side by arguing that "the textual, doctrinal and historical basis for Roe is so far flawed and ... such a source of instability in the law that this court should reconsider that decision and on reconsideration abandon it. This position also did not endear him to the remaining members of the court who were part of the original séance 7. In Thornburg v. American College of Obstetricians (1986), a narrow majority decided, with some huffiness, that "We reaffirm once again the general principles of Roe ..." Huff and puff was not enough for people to see the handwriting on the wall. If honest constructionists were to replace the older activists from the séance 7, Roe would not long stand. And, when Justice Powell retired, President Nixon did nominate a strict constructionist to the court, Robert H. Bork. This lit a fire under the butts of all the "fetus as a mole" crowd, as well as liberals -- who had often favored activist judges. Activist judges often legislated from the bench to give liberals what they wanted, but could not attain through honest legislative efforts. Bork's character was assassinated by everyone from welfare mothers to drunken old senators like Ted Kennedy. Lesbians and feminists attacked Bork with whatever came into their misogynist minds. Bork had a constructionist viewpoint. He had always been open and honest in public about his constructionist views, speaking out on political and judicial matters--in articles, in speeches and television appearances, in seminars at think tanks. Liberals feared his logical mind. But even drunken liberals and feminist lesbians could question his qualifications or his intellect. Indeed, it was his logic and intellect that frightened those who wanted the Supreme Court to peer into the shadows to find radiant penumbras. Thus, faced with Bork's clear capability to be a Supreme Court justice, the liberals of America decide to use McCarthy tactics to destroy Bork's image, claiming that he was an extremist who interpreted the constitutional rights of individuals much too narrowly. His public honesty made it easy for the Senate to question him on these ideological views, paint him as an extremist (Bork did not mince words) and destroy his public reputation. The liberals were so successful with their attack on Bork they have regularly dusted off their Bork approach and used it against other constructionist nominees, like Clarence Thomas.
Nixon eventually appointed Judge Anthony Kennedy to the Justice Powell seat. Now, a new case arose, Webster v. Reproductive Health Services. In this case the Court affirmed the right of Missouri (represented in the case by Webster, its attorney general) could have laws limiting abortion and defining life as beginning at conception (the actual scientific fact, click here for details).But the court would not -- although asked to --overturn Roe, totally. The court did undermine Roe, substituting a "rational basis" test, rather than a "strict scrutiny basis" test for reviewing state's actions intended to protect "potential human life."
States, re-empowered by this decision, now started to produce new laws protecting "potential life." When William J. Brennan and Thurgood Marshall retired, only Blackmun remained as the last of the séance 7. With Justices David H. Souter and Clarence Thomas replacing Brennan and Marshall, a new case came before the Court, Southeastern Pennsylvania v. Casey (1992), which would to be used as the court's final statement on Roe. The specific issue was a Pennsylvania law that placed some restrictions on abortion including a requirement for an abortion doctor to properly inform a woman getting an abortion, for the woman to wait 24 hours to get the abortion, for minors to get parents permission for abortion and for wives to notify their husbands if they planned to abort his potential child.
The Supreme Court greatly modified Roe. Although its decision "stated at the outset with clarity that Roe's essential holding ... (was) .. reaffirm(ed)," the decision went on to provide "recognition of the right of a woman to have an abortion before viability and to obtain it without undue interference from the state ... confirmation of the State's power to restrict abortions after fetal viability ... and the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." In the politically correct, anti-male climate of the times, Missouri did lose its attempt to require woman to notify her husband that she was planning to kill the husband's fetus.
Clearly missing from this new "reaffirmation" of Roe was a reaffirmation of Roe's shadowy "woman's fundamental rights" to do as they please with a fetus. Four of the Justices (Rehnquist, Scalia, Thomas and White were willing to completely overturn the Séance 7's Roe decision, but Justices O'Connor, Souter and Kennedy were interested in the preservation the concept of stare decisis (where the Court sticks with past legal reasoning, no matter how shallow or shadowy).
When Bill Clinton became president he added an openly feminist Justice (Ruth Bader Ginsburg) and Stephen Breyer, a notorious legal reasoning sophist, to the Court. Both will strengthen the chance of maintaining the remains of the Séance 7's legal reasoning in Roe.
4. Celebrating the 40th anniversary of Roe v. Wade and 55 million human deaths More details and
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www.rememberingroe.com/Remembering Roe is an opportunity for our nation to come together to commemorate the 40th anniversary of Roe v. Wade, the insidious U.S. Supreme Court that has resulted in 55 million human deaths..
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