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Roe v. Wade: A Not-So-Super Precedent
CatholicExchange.com ^
| 04-20-06
| Ken Concannon
Posted on 04/20/2006 7:44:34 AM PDT by Salvation
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Roe v. Wade: A Not-So-Super Precedent
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04/20/06
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A Grim Attachment
Its 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 Alitos 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 LLDFs 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 Wont 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. Heres 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 Roes 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 Specters 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 Dont 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 didnt want, or Norma McCorveys 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. McCorveys 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.)
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TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Culture/Society; Extended News; Government; Philosophy; Politics/Elections
KEYWORDS: abortion; decisions; judiciary; precedent; roe; specter; specterslist; staredecisis; supremecourt; wade
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For your continued discussion on Roe vs. Wade
1
posted on
04/20/2006 7:44:40 AM PDT
by
Salvation
To: nickcarraway; sandyeggo; Siobhan; Lady In Blue; NYer; american colleen; Pyro7480; livius; ...
2
posted on
04/20/2006 7:45:40 AM PDT
by
Salvation
(†With God all things are possible.†)
To: All
3
posted on
04/20/2006 7:48:01 AM PDT
by
Salvation
(†With God all things are possible.†)
To: Salvation
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.
4
posted on
04/20/2006 7:48:31 AM PDT
by
2banana
(My common ground with terrorists - They want to die for Islam, and we want to kill them.)
To: All
5
posted on
04/20/2006 7:49:49 AM PDT
by
Salvation
(†With God all things are possible.†)
To: 2banana
And they are stymied, because the people believe something else other than what the court decided!
6
posted on
04/20/2006 7:50:54 AM PDT
by
Salvation
(†With God all things are possible.†)
To: 2banana
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.
To: Salvation
This is a states rights issue, and should be decided by a people vote, not an old men vote.
8
posted on
04/20/2006 8:12:12 AM PDT
by
tkathy
(The "can do" party can fix anything. The "do-nothing" party always makes things worse.)
To: H. Paul Pressler IV
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.
9
posted on
04/20/2006 8:20:44 AM PDT
by
Mogollon
To: Salvation
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.
To: MHGinTN; Coleus; nickcarraway; narses; Mr. Silverback; Canticle_of_Deborah; ...
Pro-Life PING Please FreepMail me if you want on or off my Pro-Life Ping List.
11
posted on
04/20/2006 9:18:08 AM PDT
by
cpforlife.org
(A Catholic Respect Life Curriculum is available at KnightsForLife.org)
To: tkathy
I like that approach. People would vote differently!
12
posted on
04/20/2006 10:14:15 AM PDT
by
Salvation
(†With God all things are possible.†)
To: sgtbono2002
We call him a CINO amd a RINO.
Catholic in Name Only
Republican in Name Only
13
posted on
04/20/2006 10:15:19 AM PDT
by
Salvation
(†With God all things are possible.†)
To: sgtbono2002
14
posted on
04/20/2006 10:16:29 AM PDT
by
Salvation
(†With God all things are possible.†)
To: Salvation
I didn't know that Specter called himself a Catholic.
Definitely a CINO if that's the case.
To: FourtySeven
To: rzeznikj at stout
mark for later reading
17
posted on
04/20/2006 2:22:36 PM PDT
by
rzeznikj at stout
(This Space For Rent. Call 555-1212 for more info.)
To: Salvation
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.
To: unionblue83
19
posted on
04/20/2006 4:42:19 PM PDT
by
Lexinom
To: linda_22003
I know there has been some discussion about that. I think he may have converted to Judaism from Catholicism.
20
posted on
04/20/2006 5:47:50 PM PDT
by
Salvation
(†With God all things are possible.†)
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