Back in the Seventies and Eighties when I taught constitutional law at Brooklyn Law School, I enjoyed bedeviling my students by eviscerating Griswold v. Connecticut (contraceptives) and its successor Roe v. Wade (abortion), two of the most constitutionally indefensible decisions ever to soil the pages of the U.S. Reports.
Before reading the Court’s opinion, the class’s discussion began with a textual search for "The Right of Privacy" somewhere in the Declaration of Independence, Constitution of the United States, and Bill of Rights. Nope. Not anywhere there.
Next, we would scrutinize Justice Douglas’s majority Griswold opinion for any Supreme Court precedent that had found "The Right of Privacy" somewhere, anywhere, in the Declaration of Independence, Constitution of the United States, or Bill of Rights. Nope. Not anywhere there, either.
As we used our magnifying glasses, we learned of the majority’s “penumbras” and “emanations,” constitutional nuggets that had somehow lain hidden for a couple of hundred years in several otherwise textually-clear amendments of the Bill of Rights.
Needless to say, none of the students could justify the majority opinion any more than Douglas and his majority brethren did.
So the “pro-choice” students—mostly young New York City females—began to talk policy and morality: Abortion was good policy and perfectly moral. In support of both, they recited the mantra of a woman’s penumbral- and emanational-based "right" to do what she wanted with her body—which was (and is) a euphemism for destroying a fetus. Then, no surprise, the discussion got hot. I deliberately began asking modestly “So abortion in, say, the first month of pregnancy is OK?” Sure. Absolutely. You better believe it. A woman’s right….don’t you know?” Etc.
By now you can guess where I went from there, day-by-day, week-by-week, month-by-month.
Inevitably, by pregnancy's mid-term some students were beginning to see the trap, and dropped out of the Socratic dialogue, evidently uneasy about where their professed pro-choice policy/morality stance was leading them.
"So," I asked with as much fake innocence as I could muster, "if a woman has a 'privacy' right to do whatever she wants with her body, she can destroy her baby any time she chooses, even though the infant is outside her body, the mother and child still attached by the umbilical cord?"
After a few gasps died away, to their credit some students said "no"
Others did not.
Whether the approval by some of such barbarism was an effort to be consistent, or not to agree with the professor, or for other reasons, it was clear to me that there were some who believed infanticide was, in principle, morally acceptable policy.
Sadly, I wasn't surprised then and I'm not surprised now that there are those (e.g., Virginia's governor and Governor Cuomo and the New York Legislature) who believe it is the government--not the sovereign individual--that decides whose freedom and even one's life is to be sacrificed for the benefit of others. For an example, a moments-before pregnant mother suffering not the joy of birth, but instead experiencing motherhood-remorse who can now in New York and doubtless soon elsewhere sacrifice a baby to whatever her psychological needs are (or may be, what, a day later, a month, a year?) Think slavery, conscription, polygamy, suicide, for whose lives and freedom has been, and is, sacrificed to the needs of others.
There are many iterations of this principle in opinions of the Supreme Court of the United States, few worse than when the highest court in the land approved forced sterilization. About ten years ago I wrote the following essay in the context of Obamacare.
A couple days ago in my blog entitled “Adolf Hitler, the Buck Sisters, and The Four Horsemen” (http://henrymarkholzer.blogspot.com/2009/08/adolf-hitler-buck-sisters-and-four.html), I wrote of the Nazis’ use of eugenics to rid the Third Reich of “undesirables,” and of how American eugenics proponents achieved a Supreme Court victory approving the practice in the United States. “Three generations of imbeciles are enough.”
I also made the point that under proposed Obamacare, rationing of medical services would “necessarily hasten the death of the elderly,” and that “[o]ne need not be Dr. Kildare to understand that when this . . . happens to medical care, more seniors die—younger, faster and in much more distress. Indeed, Obama himself suggested that his 86-year-old grandmother, instead of having a hip replacement, perhaps should have had only a few Vicodin tablets to ease her pain.”
I wrote that “[t]he Democrats can now play all the word games they wish, trying to bury in lies and euphemisms the nature of what they want to do, but it’s too late. Former Senate Majority Leader Tom Daschle has stated categorically in his health care book that ‘[s]eniors should sacrifice advancements in care so that resources can be spent on the young’.”
So much for the elderly, who are to be “sacrificed” to the needs of the young.
But what about the unborn, who also require the expenditure of substantial government resources, medical and otherwise? Are some of the unborn also to be “sacrificed” on the altar of Obamacare’s “resource allocation” for the sake of others?
For decades the unborn have been sacrificed for the sake of others—mothers, fathers, boyfriends, careerists, adulterers, philanderers-- with millions of abortions fig-leafed by euphemisms such as “birth control” and “planned parenthood.”
But, but, but . . . you say, abortions are voluntary. Pregnant women aren’t forced to have abortions. Roe v. Wade “constitutionalized” choice, not compulsion. The government could never require a woman to abort, for the sake of the young, or for “society” (i.e., lots of other people), or for any other reason.
In the wake of Roe v. Wade, the states had to revise not only their abortion laws (those that survived the Court’s indefensible decision), but also related laws affected by that decision (e.g., criminal statutes).
Connecticut Welfare Department regulations paid for childbirth expenses. But they limited state Medicaid benefits for first trimester abortions to those “medically necessary.”
In 1977, in the case of Maher v. Roe [a pseudonym] the Supreme Court of the United States was asked to decide “whether the Constitution requires a . . . State to pay for . . . [non-medically necessary] abortions when [meaning “since”] it pays for childbirth.” In other words, did Connecticut have a constitutional, Tenth Amendment, right to a Medicaid funding policy which treated birth and abortion differently?
Before answering that question, the Court felt obliged to point out what Roe v. Wade had not held: “Roe did not declare an unqualified ‘constitutional right to an abortion. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds’.” (Emphasis supplied.)
According to the 6-3 majority, “The State unquestionably has a strong and legitimate interest in encouraging normal childbirth . . . an interest honored over the centuries.” (Emphasis supplied.)
If, according to the Supreme Court, a state has the constitutional power in the allocation of public funds, to favor childbirth over abortion—supposedly a rock-solid constitutional right rooted in the “right of privacy”—that same state necessarily possesses the constitutional power to favor, meaning to “prefer,” abortion over childbirth.
The government preferring abortion over childbirth? An outrageous idea, no?
The liberals, progressives, feminists, democrats, and their ilk currently running our government have always preferred abortion over childbirth. Indeed, they are zealous in the extreme about it. And once the Obama Administration regains its footing after the health care fight, we will see further examples of their preference for abortion over childbirth, followed by government funds being dispensed, or withheld, to implement that preference.
But could that “preference” be translated into compulsory abortion of the unborn, perhaps of “abnormal” fetuses, torn from mothers who cherish their babies and want to carry them to term?
I return to the Supreme Court, which in Buck v. Bell (http://henrymarkholzer.blogspot.com/2009/08/adolf-hitler-buck-sisters-and-four.html) upheld compulsory sterilization of “imbeciles” and other actual, and alleged, retarded Americans.
As noted, in the Maher case, the Supreme Court majority said that “[t]he State unquestionably has a strong and legitimate interest in encouraging normal childbirth . . . an interest honored over the centuries.” (Emphasis supplied.)
After the last word in that sentence, “centuries,” there appears a footnote, as astonishing as it is ominous, written by Associate Justice Lewis Powell: “In addition to the direct interest in protecting the fetus, a State may have legitimate demographic concerns about its rate of population growth. Such concerns are basic to the future of the State and in some circumstances could constitute a substantial reason for departure from a position of neutrality between abortion and childbirth.” (Emphasis supplied.)
Does anyone need a translation? If there are too many people—the elderly, for example?—for whatever reasons, the state could “favor” abortion. Just the way Virginia and many other states “favored” compulsory sterilization, a population control technique approved by the Supreme Court of the United States.
It gets worse.
As noted in the footnote below, the majority which subscribed to this horrendous proposition consisted of Powell, Burger, Stewart, White, Rehnquist, and Stevens: two “conservatives,” three “moderates,” and a liberal. The Court’s other three liberals were in dissent: Brennan, Marshall and Blackmun (the infamous author of Roe v. Wade).
Do the math.
All six conservatives, moderates and liberals mused about a contemporary solution to “demographic concerns about [government’s] rate of population growth” by favoring abortion—the way the Court, 8-1, had approved various states favoring compulsory sterilization.
But not one of the three liberal dissenters raised even a syllable in denunciation of dumping the unborn in the name of some sort of a public good. On that point, the Supreme Court of the United States—conservatives, moderates, and liberals alike—was of one mind.
Once, compulsory sterilization of Americans was thought to be impossible—until it happened.
Once, rationing medical care for our senior citizens was considered unthinkable—but now it is discussed, even advocated, openly.
Once, even after Roe v. Wade sanctioned abortion-on-demand, coerced abortion was believed to be inconceivable—yet some thirty years ago it was not denounced by a single justice of the Supreme Court.
So, we must wonder: Tomorrow the unborn?
No need to wonder any longer. Not just the unborn. Now, at least in New York State, those who can be sacrificed for the benefit of others are living babies.
Even cannibals don't kill their babies.
Only humans do!
* Powell, Burger, Stewart, White, Rehnquist, Stevens vs. Brennan, Marshall, Blackmun