Roe v Wade - celebrating judicial activism
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?
Posted 03-05-2011 at 15:31 by jarhead466