Saturday Evening Judicial Reiew Post #17
For our Judicial Review today, we want to revisit Roe v. Wade in relation to the confirmation of Judge John Roberts to the United States Supreme Court.
Ed Whelan, President of Ethics and Public Policy Center and contributer to Bench Memos has written the most lucid explanation of three possible positions on Roe v. Wade which we have found as of this date in, Abortion & Justice. For our purposes today, we are going to outline Mr. Whelan’s three positions, set forth his observations, and finish with our conclusions.
Here are Mr. Whelan’s three positions:
- “The pro-abortion position. The first position is that the Constitution prohibits, to one degree or another, laws that protect the life of an unborn human being against her mother’s desire to have her killed.
- The pro-life position. A second position is that the Constitution prohibits, to one degree or another, laws that permit abortion. Under this “pro-life” position, unborn human beings would be recognized as “persons” for purposes of the Due Process Clause.
- The substantively neutral position. The third position is that the Constitution generally does not speak to the question of abortion. Under this substantively neutral position, American citizens would have the constitutional power to determine through their state representatives what the abortion policy in their own states would be.”
Mr. Whelan’s comments concerning the pro-abortion position above are as follows:
“As a number of honest liberals have long recognized, as a matter of constitutional law, this pro-abortion position is indefensible. Nonetheless, with minor modifications, a five-justice majority ratified Roe in the 1992 ruling in Planned Parenthood v. Casey. In so doing, these justices declared, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this vacuous New Age declaration — which has now been embraced by six of the current justices — really means, of course, is that those justices claim to have the unconstrained power to define for all Americans which particular interests those justices think should be beyond the bounds of American citizens to address through legislation.”
Mr Whelan’s comments regarding the pro-life position are:
“This argument is far more credible than the position taken by the Court in Roe and Casey. Indeed, advocates of the “living Constitution” ought to embrace it, as it combines respect for America’s traditions with an updated scientific understanding. Nonetheless, I believe this position to be incompatible with a proper originalist understanding of the Due Process Clause.”
Finally, the following are his comments on the substantively neutral position:
“This neutral position — which three members of the current Court, Rehnquist, Scalia, and Thomas, embrace — also happens to be the proper reading of the Constitution (as I explain more fully here).”
The heart and soul of the abortion issue is the due process clause of the fourteenth amendment to the Constitution. Which states the following in Amendment Fourteen, Section One:
“…nor shall any State deprive any person of life, liberty, or property, without due process of law;…”
The question for Christian Conservatives to answer, is which one of the above positions is the correct position to hold in light of our zeal to protect unborn lives? The answer appears to be obvious, that we would hold position number two, the pro-life position. This position seems the only reasonable alternative to the radical left position of position number one, the pro-abortion position. While we might want a law prohibiting abortion and effectively overturning Roe v. Wade in the exact opposite direction, do we really want the Supreme Court to legislate that law from the bench?
To answer this question, we really must ask, what is the role of the Church, and Christians in society? It is our contention that Christians, and Churches should actively through moral persuasion be having the impact intended by Christ’s commandment to be the salt and light of the world. Activist Christians would in fact be able to convey to a majority of our fellow citizens, the evil inherent in legally murdering unborn infants. The result being that each state would pass their own laws prohibiting abortion on demand which are paid for with subsidized tax dollars, with legalized abortions only to save the life of the mother, and only in those extreme cases.
Which would lead us to position number three, the neutral position, which we believe is the proper understanding of the Constitution. This position is currently held by Justices Scalia, Thomas, and Rhenquist. From our reading and analysis, we agree with Mr. Whelan, that Judge Roberts may very well hold this position himself.
If Judge Roberts truly holds the neutral position, and is confirmed, that would constitute four Justices on the Supreme Court which would hold that Roe v. Wade was a bad decision, and with another Justice currently on the Court voting with these four, or another retirement besides Justice Rhenquist, it is possible to at long last over-turn Roe v. Wade, and return the rightful authority to the citizens to pass their own laws in each state in accordance with the proposition as outlined above.
Polls have found that there is a majority of citizens in the US today who would like to see most abortions, especially partial-birth abortion abolished now. But for activist Justices currently serving on the Supreme Court now, Roe, might very well have been overturned already.
It is our conclusion that we don’t want conservative activist Justices writing law from the bench to protect the sanctity of life. We, the people can protect life well enough ourselves, once the obstacle of Judicial Activism is removed.
Please read Ed Whelan’s article above. It is very well written and thought provoking.
