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Roe v Wade - celebrating judicial activism

Posted 01-13-2011 at 07:11 by Razorsharp
Updated 01-13-2011 at 09:08 by Razorsharp

This coming January 22nd, will mark the thirty-eighth anniversary of the the Supreme Court's landmark ruling in the case of Roe v. Wade. And despite of the media's attempt to elevate the anniversary date to red-letter status, the country is still sharply divided over the Court's decision. In fact, the number one question looming over any nominee to sit on the Supreme Court, well, any nominee by a Republican administration, is "how will they rule regarding Roe v. Wade?"

While the concept of "freedom of choice" is compatible with the ideals of individual freedom and liberty that the Founding Fathers envisioned, all the angst and apprehension expended over how a prospective Supreme Court Justice may interpret Roe v. Wade, seems to be a good indicator that those wringing their hands realize, deep down in their hearts, that there is a fault in the Court's ruling.

So, did the Court rule judiciously in regards to the Constitution, or expeditiously in regards to an agenda? Let's go back and take a look at the genesis of Roe v. Wade.

The politics of feminism was in high gear in 1970, the year that Norma McCorvey, known as plaintiff "Jane Roe", found herself to be pregnant with her third child. The first two having been given up for adoption, Miss McCorvey says that she did not want to go through another pregnancy, just to give away another child. She then made the decision to seek a medical abortion.

Thwarted by Texas' law prohibiting abortion, except in cases to save the life of the mother, Norma McCorvey was put in touch with two attorneys, Sarah Weddington and Linda Coffee, who, as Miss McCorvey described in an interview, "were interested in challenging the Texas abortion statute."

When the Supreme Court is petitioned to hear a case, the plaintiff must provide an issue of a Constitutional violation for the Court to judge. In the case of Roe v. Wade, the attorneys for Norma McCorvey relied on "privacy" as their issue.

Notwithstanding the occasional pundit ranting over "privacy" not being specifically mentioned in the Constitution, a case can certainly be made that privacy is a constitutional right of the individual that emanates as a penumbra of the Fourth Amendment, but actual privacy was not really being addressed in Roe v. Wade. The real issue at hand was that the State of Texas had a law that forbade physicians, who also happen to be licensed by the State of Texas, from performing a particular elective medical procedure. A procedure that is also explicitly prohibited by the Hippocratic Oath.

The Texas law prohibiting elective abortion was no more a violation of anyone's right to privacy anymore than a state law that prohibits gambling. Furthermore, the very act of having to enlist a state-licensed practitioner to perform the procedure should have negated any perception of a privacy issue.

So, as illustrated, the issue of a privacy violation was more or less an excuse put forth by plaintiff's counsel that was used to justify the Supreme Court hearing the case, and being sympathetic to the politics of the day, the Court agreed to hear the case under that pretext.

The case of Roe v. Wade came before the Supreme Court on December 13, 1971, but attorneys for the plaintiff failed to put forth testimony sufficient to sway the Court to overturn the Texas statute on the basis of violating the plaintiff's right of privacy. But, rather than ruling accordingly, the Supreme Court gave the plaintiff's counsel another opportunity to make their case, and remanded the case to be re-argued on October 11, 1972.

In the interim, the case of Eisenstadt v. Baird came across the Supreme Court's docket. In Eisenstadt v. Baird, the Supreme Court ruled a Massachusetts law that banned the distribution of contraceptives to single people to be unconstitutional, and while writing the majority opinion, Justice William Brennen buried a bone.

Former Supreme Court Clerk, Edward Lazarus, in his book, "Closed Chambers", describes the tactic of "burying bones" as the deliberate insertion of words or phrases into court decisions, so they can later be dug up to be used to influence future cases.

Lazarus details Brennen's insertion into the Eisenstadt opinion a sentence claiming that the privacy right included freedom to decide "whether to bear or beget a child", despite the fact that Eisenstadt v. Baird had nothing to do with bearing a child. But since Roe v Wade did, the attorneys for Roe were able to cite the Eisenstadt opinion as a precedent the second time they brought their case before the Court, and on January 22, 1973, the Supreme Court ruled in favor of the plaintiff.

Now, that's judicial activism.

So, the next time you witness a senator perched upon high and looking down over his glasses at a prospective Supreme Court justice and inquiring if the nominee believes that Roe v Wade is the law of the land, the real question should be, how can any senator, who is charged with the utmost in responsibility in matters pertaining to the law, truely believe that Roe v Wade is judiciously settled law?
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  1. Old Comment
    I'm new to this thread and blog stuff so please bear with me. I've been in the Pro-Life movement for over a dozen years, having believed the pro-choice lie back in '73 when I was 26 and ran on pure emotion. Since then I've grown up and see abortion for what it really is: Anti-Humanism. We all argue that the government will only take our weapons from our cold, dead hands, but we have swallowed a lie in order to butcher over fifty-four million American babies. Abortion never really was about a woman's right to choose. That never should be a right in the first place... to premeditatedly murder your own child. That's insanity and what this nation has been driven by since 1973. Abortion hurts and destroys women and their bodies, murders a child and removes any sense of morality from our culture: If we are willing to murder our own flesh and blood in the name of "choice", then HOW can we argue that the Nazis did anything other than make a different "choice" to eliminate Jews and Christians? Remember... what goes 'round comes 'round, and it's happening now. We are a nation of old people, and our working youth no longer have a sense of right and wrong. What makes you believe that they will not "choose" to eliminate the elderly and infirm, since WE chose to eliminate the young in our society. Remember... Obama and his cronies are ALL pro-abortion, and they have already set up "death panels" to deny care to those they believe to be too expensive to keep alive. Care WILL be denied to people in this category, so no one can argue that "universal" health care is really universal, because it will be denied to many people. People need to study the link between Eugenics and Margaret Sanger's link to it. I could go on and on, but I won't. Those that do not learn from history are DOOMED to repeat it. The American Abortion Holocaust has far surpassed Hitler's atrocities, Mao's atrocities, and all others. Should this nation be proud of that, when we won't even stop the influx of illegal aliens coming into this country, many who make anchor babies in order to stay here, yet we applaud a woman's "right" to choose to murder her American baby? Abortion is national suicide. Until we all realize that, we are all doomed.
    Posted 03-05-2011 at 15:31 by jarhead466 jarhead466 is offline

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