GURVICH: Waiting, And Leaking, For Roe At The Court

So the Chief Justice of the United States Supreme Court, John Roberts, has confirmed that the draft opinion leaked on Monday night was authentic, in that it was generated by the Justices and/or the staff of the Court. However, this is not the same thing as confirming that the draft is an accurate version of the Court’s impending decision.

Everyone is anxious about the decision, obviously, but allow me to digress for a moment to briefly discuss the leaked draft and its effects on the Court, which will be both considerable and lingering. We do not yet know who leaked the draft, but this violation of the Supreme Court’s inner sanctum is unprecedented in modern times. The FBI has already begun an investigation, and if leaking this document is not itself a crime (which will be determined in short order, I am sure), then lying to the FBI certainly is. The leaker will have to come clean about the leak or risk committing a federal felony, or likely felonies. If the leaker is a lawyer, he or she will almost certainly face disbarment for what would amount to an ethical violation of epic proportions. If the leaker is a justice, well then, you can kiss the reputation and effectiveness of the third branch of our government goodbye.

But to return to the decision itself, although we can only speculate about it right now: Both Roe and its companion case decided on the same day, Doe v. Bolton, as well as the 1992 case of Casey v. Planned Parenthood, and a host of other federal and state decisions, may soon be overturned. Those of us old enough to remember may recall how both Roe and Doe purported to establish a woman’s right to an abortion. The legal theory on which the decisions were based was simply that the Due Process Clause of the 14th Amendment to the Constitution provided a fundamental “right to privacy” that protected a woman’s liberty to choose to have an abortion. Many legal scholars immediately detected the shaky foundations in the Court’s reasoning, as well as the questionable use of “trimesters” in its ruling.

Why trimesters were ever used as a legal measuring stick for a physical condition can only be guessed at, but it was likely because medical knowledge in the field of Embryology was so lacking at the time. And as the human gestation period is nine months long, and nine is easily divided by three, it was an easy, if simplistic, call to base the state’s interest in regulating abortion rights on a trimester system. The fact that second grade math has nothing whatsoever to do with embryonic development was belatedly recognized in the 1992 Planned Parenthood v. Casey decision. Casey maintained a woman’s right to an abortion while jettisoning the three trimester regulatory standard, and instead used a fetal viability standard.

The problem with the fetal viability standard is that advances in science have continually changed  the standard over the ensuing decades. It has now been a half-century since Roe was decided, and we have greatly increased our understanding of what happens in the womb during pregnancy. We know that a human fetus can feel pain, direct its movements, hear, dream, and think, much earlier than was assumed in 1973. It can also survive outside the womb (with a lot of luck and excellent medical care) at just twenty-two weeks, and most fetuses born at twenty-six weeks will survive. Suffice it to say that “Science” has not been on the side of abortion rights advocates for a very long time.

And this fact has had a lot to do with bringing us to this moment in time, because in essence the Court decided Roe in 1973 the way it did because it wanted to. It created a non-existent constitutional right to an abortion based on an inferred right to privacy, ignoring the fact that abortions became illegal as soon as the mother became aware that the fetus was alive, in most colonies and states long before the Constitution was written. Of course, the Constitution itself nowhere mentions anything about abortion, and that fact alone should have made a final determination of the abortion issue very simple: Every high school civics text contains somewhere within its pages the plain language that under our form of government, all powers not specifically granted to the federal government are reserved to the states.


Prior to Roe, the right, or not, to an abortion had always been a matter for the states to decide on their own. The United States Supreme Court arbitrarily took that right away in 1973, and it appears that the Court is on the brink of returning it to the states. Even so, abortion will not become illegal in every state, or perhaps not even in most states, so a cautionary warning is in order:

When an individual or a society reaches the arbitrary conclusion that a human embryo or fetus is nothing more than an unfeeling lump of tissue, especially when that lump of tissue is as palpably human as a second or third trimester fetus, then other forms of barbarous behavior become inevitable. Our most perceptive pastors and  theologians have long warned us that it is but a short step from there to routine late term abortions of convenience, assisted suicide without medical cause, infanticide, and even worse. This is because the human spirit is one of the first victims of abortion.

The American left has reached this point, and now holds abortion views which are outliers far beyond those of most other civilized societies, the only sure exception being Communist China. That is why the number of pro-choice Americans has been declining, as have, thankfully, the number of abortions. The wonder is not that Roe is apparently about to be overturned, but rather that such a flawed case was allowed to stand as precedent for fifty years in one of the most developed legal systems in the world.

Republican Party of Louisiana



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