Posted on 08/15/2005 1:39:12 PM PDT by Constitution Restoration Act
Statement
United States Senate Committee on the Judiciary
The Consequences of Roe v. Wade and Doe v. Bolton
June 23, 2005
The Honorable Sam Brownback
United States Senator , Kansas
--------------------------------------------------------------------------------
OPENING STATEMENT OF SENATOR SAM BROWNBACK
CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND PROPERTY RIGHTS
SUBCOMMITTEE HEARING: “THE CONSEQUENCES OF
ROE V. WADE AND DOE V. BOLTON”
JUNE 23, 2005
I am pleased to call to order this Constitution Subcommittee hearing on the consequences of Roe v. Wade and Doe v. Bolton, and thank Ranking Member Feingold, the witnesses, and those in attendance for their participation.
America was founded upon the “self-evident truth” that all humans are endowed with the unalienable right to life.
Yet the wisdom that flowed in 1776 from Jefferson’s pen was rejected almost two centuries later, when a divided Supreme Court found a constitutional right to abortion. In Roe v. Wade, the Court shaped this right around the three trimesters of pregnancy, even prohibiting the states from regulating post-viability abortions if the “health” of the mother was involved. In Doe v. Bolton, the Court expounded on the meaning of “health,” describing the term so broadly that several scholars believe this exception to state authority to regulate abortion actually is the rule.
In the years since Roe v. Wade and Doe v. Bolton were decided, it is estimated that around 40 million abortions have taken place in the United States. The legally-sanctioned extinguishing of these millions of innocent lives is a gross injustice in itself.
Not long after the Supreme Court handed down Roe and Doe, former Supreme Court Justice Harry Blackmun, the author of the those opinions, himself cast in doubt the wisdom of the Supreme Court’s sudden and decisive role in the abortion debate.
For instance, in 1978, as the Supreme Court was considering yet another abortion-related case from a lower court, Justice Blackmun noted in private correspondence, “More a[bortion]. I grow weary of these. . . . [I] wish we had not taken the case.”
Justice Blackmun’s surprisingly candid private sentiments match the unsurprising and overwhelming public criticism that the Supreme Court’s abortion jurisprudence has inspired. The contentious debate since 1973 over the culture of life has proven that the American people, the democratic process, and ultimately even the federal judiciary have been ill-served by the Supreme Court’s breathtaking intervention into, and circumvention of, the public debate about abortion.
What is striking about the criticism of these decisions is that it has come from across the political spectrum. Indeed, the Supreme Court decisions have been widely condemned by both the right and the left.
Liberal legal scholars in particular have attacked the abortion decisions’ utter lack of pedigree in either constitutional text or American tradition. For instance:
• John Hart Ely, one of the leading constitutional scholars of his generation, stated that Roe v. Wade “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
• One of the most thorough explanations of the constitutional quicksand upon which the right to an abortion rested after Roe comes from Edward Lazarus, himself a former clerk to Justice Blackmun. Lazarus has stated as follows:
“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather. . . .
What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. . . .
The proof of Roe’s failings comes not from the writings of those unsympathetic to women’s rights, but from the decision itself and the friends who have tried to sustain it. Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”
But the left’s strong criticism of Roe and Doe does not stop with the fact that the decisions smacked of political judgment more than constitutional principle. Rather, it also extends to the fact that the Supreme Court unilaterally ended the democratic process by which the People and the states were making their own judgments about the appropriate governmental role in protecting unborn life.
• For example, none other than Justice Ginsburg has said that at the time of the decisions, “The law was changing. . . . Women were lobbying around that issue. . . . The Supreme Court stopped all that by deeming every law – even the most liberal – as unconstitutional. That seemed to me not [to be] the way courts generally work.”
• Similarly, Jeffrey Rosen, a liberal law professor and noted privacy expert at George Washington University Law School, recently stated that “Roe v. Wade was bad for liberals. . . . Roe has cast a shadow over our judicial politics for the past thirty years. . . . Roe is an important cautionary tale about how the judiciary, when it attempts to thwart the determined wishes of a national majority . . . may be responsible for a self-inflicted wound.”
These powerful objections to Roe and Doe from the left beg the question of what would happen were those objections to be sustained, and the cases to be overturned. The answer is not, as some have claimed, the nationwide prohibition of abortion. Rather, as the Constitution contemplates, the decision of whether and how to regulate abortion would return once again to the states. This is far preferable to the status quo, as Justice Scalia explained in his dissent in Planned Parenthood v. Casey:
“[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair and honest fight, . . . the [Supreme] Court merely prolongs and intensifies the anguish.”
Justice Blackmun won applause from some for stating in the 1994 case of Callins v. Collins that he would vote against the death penalty in all future cases, and would “no longer . . . tinker with the machinery of death.”
Yet Blackmun’s firm position in the Callins case stands in stark contrast with the opinions he authored in Roe and Doe, which allowed the premature ending of 40 million lives. Indeed, in his memoranda to other Justices before the cases were decided, Justice Blackmun observed that “I have concluded that the end of the first trimester [of pregnancy] is critical,” and then explicitly conceded, “this is arbitrary.” Geoffrey Stone, a law clerk to Justice Brennan when Roe was decided, has confirmed this, stating that “Everyone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary.’”
To put it simply, Roe was a mistake. A very, very costly one.
The admittedly arbitrary decisions in Roe v. Wade and Doe v. Bolton have had deliberate and severe real-life consequences for women, unborn children, and the body politic. Here to discuss those consequences in more detail are two distinguished panels of witnesses. On the first panel, we will hear personal perspectives from Norma McCorvey, who was the plaintiff Jane Roe in Roe v. Wade, and Sandra Cano, the plaintiff in Doe v. Bolton. These witnesses will describe their journey from being litigants in the most controversial cases of our time to becoming dedicated advocates for a culture of life. We also will hear from Dr. Ken Edelin, Associate Dean at the Boston University School of Medicine.
The second panel of witnesses will discuss the legal and institutional aspects of the abortion decisions. In particular, they will both examine the constitutional foundation for the right to abortion, and explore the effects of the Supreme Court’s permanent short-circuiting of the democratic process with respect to this important issue. The witnesses on this panel will include Teresa Collett, Professor of Law at the University of St. Thomas Law School; M. Edward Whelan, President of the Ethics and Public Policy Center and a former clerk on the Supreme Court; Alta Charo, Professor of Law and Bioethics, and Associate Dean for Research and Faculty Development at the University of Wisconsin Law School; and Karen O’Connor, Professor of Government at American University. I thank all of the witnesses for attending, and with unanimous consent will enter each of your written statements into the record.
What is the point here? I am not getting it.
BTTT
Thank you very much for finding and posting this from Sen. Brownback's Number #1 fan
Testimony
United States Senate Committee on the Judiciary
The Consequences of Roe v. Wade and Doe v. Bolton
June 23, 2005
Sandra Cano
(The former Doe of Doe v. Bolton) ,
http://judiciary.senate.gov/print_testimony.cfm?id=1553&wit_id=4393
The point is, Roe v. Wade was a terrible injustice that has created an American Holocaust that needs to be rectified, ASAP, and that it's a fight that must be seen through to a successful conclusion by overturning the R. v. W. decision.
To this statement one must ask why the Congress didn't intervene in Roe? It certainly had the power to do so.
What are the constitutional checks on the judiciary? Are there any?
When such fundamentally flawed rulings as Roe are made who is to be held accountable?
You are right. They were for the most part united in their wickedness.
Because Congress, at the time, was in the control of leftists who have no conscience and promote the death cult of leftist ideals.
OK. But, the left isn't in control of Congress now. So, the question remains: Why doesn't Congress intervene?
They have a disease called lackofspineusitis.
And dry up their anti-life warchest? $$$$$. That's why.
Some people might argue that issues like abortion or sodomy marriage are best settled nationally. I think I'd prefer to see a few states have their political lives revolve around these issues and free the two political parties from the issue altogether at the national level.
http://www.lewrockwell.com/paul/paul240.html
The notion that an all-powerful, centralized state should provide monolithic solutions to the ethical dilemmas of our times is not only misguided, but also contrary to our Constitution. Remember, federalism was established to allow decentralized, local decision-making by states. Yet modern America seeks a federal solution for every perceived societal ill, ignoring constitutional limits on government. The result is a federal state that increasingly makes all-or-nothing decisions that alienate large segments of the population.
This federalization of social issues, often championed by conservatives, has not created a pro-life culture, however. It simply has prevented the 50 states* from enacting laws that more closely reflect the views of their citizens. Once we accepted the federalization of abortion law under the 1973 Roe v. Wade decision, we lost the ability to apply local community standards to ethical issues. It is much more difficult for pro-life advocates to win politically at the federal level. Those who seek a pro-life culture must accept that we will never persuade 300 million Americans to agree with us. Our focus should be on overturning Roe and getting the federal government completely out of the business of regulating state matters. A pro-life culture can be built only from the ground up, person by person. For too long we have viewed the battle as purely political, but no political victory can change a degraded culture. A pro-life culture must arise from each of us as individuals, not by the edict of an amoral federal government.
March 29, 2005
Dr. Ron Paul is a Republican member of Congress from Texas.
*"Report: 30 States Ready to Outlaw Abortion, Tuesday," October 05, 2004, FOXNews.com http://www.foxnews.com/story/0,2933,134530,00.html ."The State-by-State Consequences of Overturning Roe v. Wade," September 2004, The Center for Reproductive Rights http://www.crlp.org/crt_roe.html, http://www.crlp.org/pub_bo_whatifroefell.html
Please FreepMail me if you want on or off my Pro-Life Ping List.
Thank you, cp, for the ping.
I disagree with the argument that the spuriously decided cases of Roe and Doe (and others) ought to be overturned so that the decisions on abortion may be returned to the states.
Much as the pro-slavery secession and "states' rights" arguments that produced the Civil War were wrong - because slavery itself is wrong and had to be abolished - so too the practice of on-demand abortion is wrong and must be abolished. Even as our nation was founded and our Constitution and Bill of Rights were written to establish and defend true liberty, and thus slavery could not be maintained in practice in a truly free nation, so too abortion is an unsustainable practice whether it is codified in law nationwide or in but one out of the fifty states.
Because the right to life is the primary, first-cause right of every human being, because the defense of the life of its citizens is the number one role of just government, abortion on-demand must be abolished nationally, even as slavery was.
There are those who attempt to rebuke me with the pejorative "Single-Issue Voter": to these I say, if slavery were in practice in America today, would you not consider every other cause secondary to its abolition? Even so, the murder of the innocents in America is by far the most egregious crime against humanity in our day and must be addressed and overturned above any other legal, moral or just necessity.
May it be so, Dear Lord. Amen.
Returning it to the states is a good start, however. I look at it as one pragmatic step to ending abortion. In some states, like Missouri and Louisiana, it will be easy. In others, like California, New York, and Washington, we've got a battle on our hands. But at least... the long-overdue battle may finally be waged and won.
bump
Abortion and the Pill are the weapons of mass destruction most harmful to our individual spirit and our nation's future.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.