Roe v. Wade: A Not-So-Super Precedent

CatholicExchange.com ^ | 04-20-06 | Ken Concannon

[Salvation]

by Ken Concannon

Other Articles by Ken Concannon

Roe v. Wade: A Not-So-Super Precedent

04/20/06

		On the second day of Supreme Court nominee John Roberts’s Senate Judiciary Committee hearings in September 2005, pro-choice Republican committee chairman Arlen Specter of Pennsylvania introduced the subject of stare decisis, a Latin term meaning "to stand by that which is decided.”
In This Article... A Grim Attachment If the Print Is Small Enough They Won’t Notice Please Don’t Confuse Us With the Facts

A Grim Attachment

It’s a maxim that abortion supporters, like Specter, cling to dearly because most constitutional scholars are well aware that the Roe decision is merely what the late Supreme Court Justice Byron White described as nothing more than an “exercise of raw judicial power.”

No doubt aware how important stare decisis is to the continued viability of Roe, Specter presented at the confirmation hearing a chart that showed “38 cases where the court had taken up Roe,” written in small print and not readable by the viewing audience. He then went on to ask the nominee if he thought that “Roe might be a super-duper (emphasis added) precedent in light of 38 occasions to overrule it?”

Well aware that the term “super-duper” had not yet been written into the legal lexicon, the gracious nominee refrained from laughing at the remark, but did say this: “Well, the interesting thing, of course, is not simply the opportunity to address it, but when the court actually considers the question.”

When Specter used the same chart at Judge Samuel Alito’s nomination hearings and started again referring to Roe as a “super-duper” precedent I began searching the Internet for the Specter list of 38 Supreme Court decisions that re-affirmed Roe — with little luck. So I began putting together my own list and found in various Internet sites about 35 decisions related to the abortion issue. Eventually, I stumbled across the Specter List on a Website belonging to the Life Legal Defense Fund (LLDF) and compared that list with the one I had already created. Except for a handful of decisions where no opinions were written, the two lists were nearly identical. The commentary below is based on the LLDF’s Specter list.

Since the Roe and Doe decisions, the Supreme Court has “taken up” the central holding of the Roe decision, the right to abortion, three times, not 38. It did so in Akron v. Akron Center for Reproductive Health, in 1983; Thornburgh v. American College of Obstetricians and Gynecologists, in 1986; and Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992.

If the Print Is Small Enough They Won’t Notice

None of these three cases actually reconsidered the constitutional merits of the original Roe decision. The Akron and Casey decisions rely solely on stare decisis and face-saving (which, along with “super-duper” is not yet a legal term) to justify the affirmation of Roe, while hinting that the constitutional merit of that awful decision might be doubtful. Here’s a sample from the Casey decision:

Application of the doctrine of stare decisis confirms that Roe's essential holding should be reaffirmed.... A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy and to the Nation's commitment to the rule of law.

Faint praise for a super-duper precedent. Only the Thornburgh decision, written by Roe’s author, Harry Blackmun, managed to avoid implication that there might be something constitutionally flawed in that decision. None of the three aforementioned decisions were even close to being unanimous decisions. The Akron and Thornburgh decisions each garnered only six votes from the nine justices, and the most recent “affirmation” of Roe, the Casey decision, was split five to four.

Of the remaining 35 cases cited in the Specter list, 30 dealt with government-imposed restrictions on the abortion industry — e.g. funding restrictions, parental notification, procedural requirements (where abortions can be performed, who can perform them, etc.). Of that number, eight merited no opinion from the Court. These cases were affirmed on the basis of the briefs filed, without oral argument.

Five of the 35 abortion-related cases on Specter’s list that did not consider or affirm the Roe decision were First Amendment cases, four of them filed by anti-abortionists who had been blocked from picketing at abortion clinics. The fifth case was filed by the managing editor of a weekly newspaper in Virginia who had run afoul of a Virginia statute that made it illegal to advertise abortion services.

Please Don’t Confuse Us With the Facts

Driven either by arrogance or embarrassment, the Supreme Court has been unwilling to consider direct challenges to the notion that there actually is a constitutional right to abortion and that abortion is somehow a good thing for women. Consequently, the court has until recently dodged tough challenges to Roe that demonstrate the opposite — like the Donna Santa Marie case about women who were coerced into having abortions they didn’t want, or Norma McCorvey’s challenge to the validity of the Roe decision.

McCorvey was the original plaintiff in Roe v. Wade — Jane Roe. Her participation in that landmark decision was something that she now regrets. She regrets it so much, in fact, that in 2003 she filed a Rule 60 motion asking that the judgment in the Roe case be set aside.

The Justice Foundation, which initiated the Rule 60 motion for McCorvey, in a statement posted May 2004, explained that a Rule 60 “can only be filed by an original party.” McCorvey’s Rule 60 motion was “based on changes in law and factual conditions since the U.S. Supreme Court handed down the decision.”

The motion included “affidavits attesting to the devastating emotional, physical, and psychological trauma of abortion” signed by over 1000 women, as well as scientific evidence documenting that human life, treated as an unanswerable philosophical question in the Roe decision, begins at conception.

The Supreme Court refused to consider the motion in February 2005. No comment was offered as to why.


Ken Concannon is a freelance writer from All Saints Parish in Manassas, Virginia.

(This article courtesy of the Arlington Catholic Herald.)

[Salvation]

For your continued discussion on Roe vs. Wade

[Salvation]

Roe No More Ministry

[2banana]

What nine unelected judges can give - they can take away. The fear of liberals everywhere who fail using the legislative process - ie - they can't convince the PEOPLE to go along with their marxist ideas.

[Salvation]

Priests for Life

I find this website to be chuck full of great information.

[Salvation]

And they are stymied, because the people believe something else other than what the court decided!

[H. Paul Pressler IV]

Unfortunately, with the introduction of RU 486 and other Abortion Drugs, Roe v. Wade is now irrelevant. Thus, even if Roe is overturned, abortion pills will be delivered by FedEx, UPS or the USPS.

[tkathy]

This is a states rights issue, and should be decided by a people vote, not an old men vote.

[Mogollon]

Unfortunately, with the introduction of RU 486 and other Abortion Drugs, Roe v. Wade is now irrelevant.

If RU-486 was any other drug than the abortion drug the drive-by media would have it on the front page news every day because of all the women it has killed. But since it is the abortion drug of choice there is not a peep from the drive-bys about the evil pharmaceutical company that makes the drug.

[sgtbono2002]

I dont know what Spectre is
I have my own opinion (which cant be discussed here. it has to do with mothers and sex.)

But he is no Republican.

[cpforlife.org]

Pro-Life PING

Please FreepMail me if you want on or off my Pro-Life Ping List.

[Salvation]

I like that approach. People would vote differently!

[Salvation]

We call him a CINO amd a RINO.
Catholic in Name Only
Republican in Name Only

[Salvation]

Catechism of the Catholic Church and what it says about those who support abortion

What does this say about Senator Specter?

[FourtySeven]

I didn't know that Specter called himself a Catholic.

Definitely a CINO if that's the case.

[linda_22003]

He's Jewish.

[rzeznikj at stout]

mark for later reading

[unionblue83]

I can't find the article now but one of the justices who originally decided Roe didn't intend for it to morph into the ugly creature that it has become. It was supposed to send the issue BACK to the States to decide for themselves.

[Lexinom]

Jusice Warren Burger

[Salvation]

I know there has been some discussion about that. I think he may have converted to Judaism from Catholicism.

[Salvation]

If you find it, please post a link to it.

[linda_22003]

I can't imagine why you would think such a thing! Since I have access to Nexis, here is a biographical item that will help dispel that rumor, if it's ever even reached rumor status.

What an amazing idea, that Specter was ever Catholic!

The Associated Press

March 30, 1995, Thursday, AM cycle

HEADLINE: Arlen Specter: Son of Poor Immigrants Aims for White House

BYLINE: By ANICK JESDANUN, Associated Press Writer

DATELINE: WASHINGTON

BODY:
Growing up in small-town Kansas, Arlen Specter labored many an afternoon alongside his immigrant father, unloading piles of scrap metal rods from trucks and railroad cars for resale.
It was sweaty, backbreaking work - yet for Harry Specter it was a step up from peddling blankets and cantaloupes door to door from a jalopy.
He owned this junkyard, and with tenacity and endurance, the business thrived during World War II and allowed the Russian Jewish emigre to send his four children to college.
"It was tough to make a living," recalls Arlen, the youngest child. "My father had to be strong and persistent."
A high school friend, Gene Balloun, was blunter: "You bet it involved heavy lifting and hard work, particularly during the summer time in Russell."
Russell, Kansas. Population 5,500. Harry Specter, who fled religious persecution as a boy in the Ukraine, had settled in a prairie town with not a single other Jew.
By strange coincidence, Specter grew up in the same town that produced Bob Dole, his fellow senator - and now his competitor for the Republican presidential nomination.
At Russell High School, Specter was an all-American boy, starring in drama productions, winning debate tournaments and playing quarterback on the varsity football team.
Friends say his childhood circumstances made him who he is today: determined, tough, independent-minded.
Specter, now a 65-year-old, three-term U.S. senator from Pennsylvania, con-siders his father's triumphs the embodiment of the American dream, a fulfillment that friends say drove him to a career in public life. And to seek the ultimate goal in American politics.
"When you grow up as somebody who has to hang onto your beliefs, it certainly prepares you to speak out as the minority on a variety of issues," said Ruth DuBois, a close friend who met Specter while he attended Yale Law School. "It becomes part of your makeup, part of your character."
Specter left Kansas for college in 1947 because the University of Kansas, where his best friends were headed, did not have Jewish fraternities.
"It was a very isolating factor," Specter said. "Being Jewish really excluded me."

The article continues, but that much of it should put the idea of conversion to rest.