What Hath Roe Wrought?

 

In 1973, the U.S. Supreme Court heard arguments in the case Roe v Wade centered around the topic of abortion.  Up to that point, some states allowed it, others prohibited it, and still others regulated it.  The 7-2 decision in Roe was based on an implied right to privacy originating in the due process clause of the Fourteenth Amendment.  The effect of that decision was that the law on abortion became uniform throughout the 50 states: permitted absolutely in the first trimester, regulated in the second, and prohibited in the third.

When Justice Lewis Powell retired from the court in 1987, President Reagan nominated Robert Bork to replace him.  This was the first of the contentious Supreme Court nominations, so ferocious that it spawned a new verb, to bork (v. tr.), defined as

"To defame or vilify (a person) systematically, esp. in the mass media, usually to prevent his or her appointment to public office; to obstruct or thwart (a person) in this way." 

The attacks on Bork were primarily based on his response to a question regarding Roe v Wade, specifically that he thought the Supreme Court should not have opined on the topic since it was clearly a matter of state jurisdiction (that is, the way it was prior to Roe).  Bork's nomination hearings set the pattern for all subsequent Supreme Court nominations, the most recent being those for Brett Kavanaugh and Amy Coney Barrett.

Roe has generated intense controversy over the decades since 1973, virtually none of it related to the notion of "federal legislative authority".

Until now.

Comes now before the court Dobbs v. Jackson Women's Health Organization that addresses a law in Mississippi banning abortion after 15 weeks (that Roe presumably permits).  JWHO sued because this was a contraction from the previous limit of 24 weeks.  A firestorm has erupted over the leak of a draft decision in the case that, were it the majority decision, would overturn both Roe and Planned Parenthood v Casey and return the entire issue into the hands of state legislatures as it was prior to Roe.

Article I section 8 of the Constitution begins: "Congress shall have power to..." and goes on to list 17 areas of concern that Congress shall have power to legislate in.  There is not a single one of those 17 that can be construed as providing federal jurisdiction over abortion or the states' methods of addressing that issue.

Bork was right, but Bork was an originalist.  He also, unlike too many Americans, too many American judges, and too many American Congressmen, understood the Constitution.

For reasons that are not at all obvious, we apparently now have a Supreme Court that is as smart as Robert Bork.

 

On Abortion

 

Received in email today from The Babylon Bee an appeal from Senator Rand Paul (R-KY) to sign a petition in favor of the "Life at Conception Act" (LACA) that would define 'personhood' as beginning at conception.  Should such an act ever be passed, abortion would be summarily reclassified as 'murder'.  A number of typical and ordinary medical procedures would likewise be summarily recategorized as 'murder'.

How odd that the pro-life movement waited until both houses of Congress and the Executive Mansion are all in the hands of Democrats to bring this issue forward.  They should have done this in 2017 when both houses of Congress and the Executive Mansion were in the hands of Republicans.  Perhaps they were anxious that, were such legislation to fail under perfect laboratory conditions, their entire movement might collapse.

It's not even theoretically possible that LACA might pass now, but this appeal does have the potential to raise money.  Beyond that, LACA would suddenly and, in the manner of unintended consequences, affirm the legitimacy of rape.  How so, you ask?

From a strictly non-denominational perspective, a strictly non-religious perspective, we Americans have a few axioms by which we maintain our society:

1. we assert as a foundational principle that all political power originates in the people.  What powers the government has it has because we the people granted those powers to the government.  There are powers we have not granted, and powers that we have previously granted that we may at some future time un-grant.

2. we have thus far as a society declined to define when life begins, although it seems quite certain that 'birth' is the latest point at which anyone may claim that life has not yet begun.  Conception, likewise, is the earliest point that life can be claimed to have started.

Let us assert, for the sake of argument to be refuted later if necessary, that when two persons (instances of 'we the people') behave in such a manner that it is fair to assume their intent was to create life (as by engaging in unprotected sex), then if pregnancy occurs they have created life.  It would be fair in such a case to assert that life exists from conception because of the ability of those persons — from whom all power originates — to create life.

We are forced to address a second scenario, one in which two persons engage in unprotected sex but do not intend to create life.  This is the situation in a rape, whether statutory or otherwise.  In statutory rape, society has already determined that one party cannot, by operation of law, have intended to create life and, therefore, life has not been created.  The fact that Nature disagrees with the legislature by enabling both parties to conceive is a side issue I am unable to address, but suffice it to say that LACA would severely warp the doctrine of 'statutory rape' by forcing a victim to carry the proceeds of a crime to term.

Relieving the victim of the burden of carrying an unwanted fetus to term is, by this act (LACA), unlawful.  It must therefore be true that rape has been elevated to, if not a completely lawful act, at least to the status of 'not entirely criminal'.

Now, if a person requests an abortion for an unintended pregnancy, the question only need to be asked: "Has life been created?"  For cases where one party was an unwilling participant (rape) there ought to be a criminal charge against the other party, thereby proving that both parties did not intend to create life.  If there is no criminal charge, this should be taken as prima facie evidence that both parties intended to create life, that life was therefore created, and an abortion cannot therefore be legally allowed.

Perhaps one or both parties used a contraceptive and one or both failed and a pregnancy ensued.  Given the nature of consensual sex, proving that contraception was used is problematic, and that's also an issue I can't adequately address.  If one can prove via a civil action that there was not consent to create life, the fact that consent was absent should be enough to disprove life and thus an abortion would be permitted.

Any abortion should be accompanied by a criminal charge or a civil action for damages.