Judiciary
HomepageMr. Chairman, members of the subcommittee, I am pleased to respond to your request to participate in the oversight hearing on "The Origins and Scope of Roe v. Wade." While I do not intend to dwell on the Partial-Birth Abortion Ban Act of 1995, the President's recent, ill-conceived veto of the measure is hardly unrelated to the "origins and scope" of Roe, and therefore, it is a logical place to begin. Following that, I briefly outline how abortion injures our law and culture well beyond the killing of unborn or partially-born children, including the denigration of women, the weakening of the family, the disfiguring of constitutional free speech and federalism, and fundamentally, the separation of law from the foundational first principles of our Nation. With reference to internal Supreme Court memoranda relating to the drafting of Roe v. Wade made public by Thurgood Marshall, but to my knowledge, not previously analyzed, it will be illustrated how, by Justice Blackmun's own admission, the holding in Roe is more "arbitrary" preference than constitutional interpretation. Finally, looking beyond judicial usurpation and presidential deception, there is a discussion of the what prudential avenues are open to the Congress to advance the interests of human life.
When President Clinton vetoed the Partial-Birth Abortion Ban Act of 1995, he proclaimed that his decision to continue the brutal taking of life by the suctioning out of the brain of late-term, partially-born children was not about politics. The President claimed he was constitutionally obligated to veto by the absence of a health exception, and he tried to demonstrate his alleged health concerns by having a number of women who have faced tragically-complicated pregnancies give their personal testimony.
But like so much of the abortion debate, this was a dishonest display. The President later admitted that the bill he just rejected "did not cover the procedures these women had, . . . ." [Transcript of remarks of the President accompanying the President's statement returning the Partial-Birth Abortion Ban Act of 1995 without approval, dated April 10, 1996].
In truth, the gruesome abortion procedure President Clinton refused to stop is not necessary to preserve the health of mothers, and indeed, by competent medical testimony, jeopardizes it.
The President was wrong to veto the Act. Factually, a medical procedure that takes 3 days does not meet a woman's emergency health needs. So too, a procedure that depends upon the unnatural manipulation of an unborn child into the most disfavored breech position, with its substantial attendant risk of uterine rupture, cannot truly be said to advance a woman's health. The medical evidence is in the record. "[T]here are [no] maternal conditions that . . . mandate ending the pregnancy that also require that the fetus be dead or that the fetal life be terminated." [See the testimony of Dr. Harlan Giles, M.D., a nationally-renown specialist in high risk pregnancies, incorporated in the report of the Hearing before the Committee on the Judiciary, United States Senate, concerning The Partial-Birth Abortion Ban Act of 1995, H.R. 1833, at 232-33].
The President's veto is also mistaken as a matter of law. Roe v. Wade and Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992), properly should be understood as creating not an unlimited right to kill an unborn or partially-born child, but a limited license to terminate a pregnancy. Under the late-term circumstances practically addressed by the Act, it is possible, by induced labor or Cesarean section, for pregnancies to be terminated without necessarily killing the unborn child. Even if these safe, if not safer, procedures were not sufficient to satisfy the Court's abortion decrees, the Act left undisturbed the full range of abortion techniques outside of the hideous partial-birth procedure.
The President claims a desire for abortions to be "safe and rare." Partial-birth abortions are neither safe, nor unfortunately, are they rare -- unless we have so distorted the language that four to six hundred unnecessary deaths each year is now "rare."
The President was right about one thing -- the ban of partial-birth abortion should not have been made into a political issue. Indeed, it might have been one occasion when the contending pro-choice and pro-life sides could have said: this practice is brutal, threatening to mother and child alike, and deserves to be stopped. That is what majorities in both Houses of Congress said; that is what medical science says; that is -- one might have though -- what the barest minimum of human dignity requires.
But, unfortunately, President Clinton's choice was different. Having aligned his political future with those who see no limit to abortion's private authorization of lethal violence, the President made the protection of even the partially-born a political issue. Given the freedom to choose, his was a choice for the culture of death.
In light of the President's mistaken veto, this Congress does need to step back and re-examine the entire abortion issue. Recently, an eloquent plea for re-examination was nationally published. "The America We Seek," A Statement of Pro-Life Principle and Concern," National Rev., at 36 (March 25, 1996). As this statement so well describes, despite all manner of euphemism, abortion kills -- it takes the life of unborn children, and now as a result of President Clinton's actions, fully-formed, partially-born children as well. But abortion is more than the killing, it is also the coarsening of the American heart:
abortion invites male irresponsibility and skyrocketing rates of illegitimacy that plague every part of this nation;
abortion demeans women, as objects of sexual gratification; gratification that need not be in the least inhibited because "the product of conception" can always, at any time, right up to the moment of birth, be disposed;
abortion invokes right, when duty and responsibility are essential; abortion insinuates the cold formality and language of "rights" into places, like the relations between husband and wife and parent and child, where only duty and fidelity can sustain marriages, form homes and build communities;
abortion undermines all life, not just unborn life; the abortion license as stated by the Supreme Court now threatens to spawn other spurious "rights," like that of assisted suicide, a right that takes deadly aim -- after the unborn and partially-born -- at the most vulnerable, and thus, expendable elements of our society -- the elderly, the disabled, and the poor.
This is not overstated. Casey's radical endorsement of autonomy has been judicially transplanted by the Ninth and Second Circuits to find an assisted suicide right. This is not re-assuring news to the disabled. Take, for example, Ben Mattlin, a 33-year-old Harvard graduate who is confined to a wheelchair because of a neuromuscular birth disability. Mr. Mattlin recently wrote in the Los Angeles Times following these abortion-abetted appellate opinions that "the right to die seems dangerous to those of us who are not ideal physical specimens." And Mr. Mattlin continues: "Euthanasia, after all, was one step toward the Holocaust. If doctors, judges and juries continue to cast doubts on the worth of people with disabilities, I fear for the one in six Americans (according to the census) who has a disability." Ben Mattlin, "Walk a Mile in My Wheelchair," Los Angeles Times, at B9 (April 12, 1996).
abortion violates the conscience of most women. The President recited in his veto message of the Partial-Birth Abortion Ban Act, that abortion "should be between a woman, her doctor, her conscience and her God." Taking him at his word, what do women say their conscience's tell them about abortion? Overwhelmingly, the majority of women express profound guilt after abortion. Women who have undergone abortions report anger at not receiving accurate information, resentment at being manipulated by others, and depression fostering increased use of alcohol, drugs and even the contemplation of suicide.
These are not just the findings of pro-life groups, but of the National Abortion Federation as well. An article written by the former executive director of this pro-abortion organization finds "ambivalence, guilt, anger, and deep confusion to be the major themes that consistently arise in abortion decision-making." [Uta Landy, "Abortion Counseling, A New Component of Medical Care," in 13 Clinics in Obstetrics and Gynecology 33 (1986)]. These themes are strong indications that, for most women, the decision to abort represents a severe violation of personal conscience. ["Induced Abortion as a Violation of Conscience of the Woman," 8 Newsletter of the Association for Interdisciplinary Research in Values and Social Change at 4 (September/October 1995)].
The fact that abortion is legal cannot erase these feelings of conscience; rather, legality merely increases the likelihood that conscience, whether formed by secular or religious belief, will be violated. We are often told of the health risks to women presented by illegal abortions, but by their own self-assessment, most of the women who have had abortions would not have had them at all if they were not legal. [Newsletter, supra at 8, citing numerous studies]. A woman's good mental health depends upon not being misled by the law into making decisions that induce self-hatred and dismay. Despite their touching words, the women at President Clinton's press event, would likely admit that not even the sympathetic, if misguided and misinformed, words of a President can lighten the burdens they will forever carry.
abortion mocks the first principle of our government. Abortion severs fundamentally the legal and historic relationship between the inalienable right of life acknowledged in the Declaration of Independence and the interpretation of the Constitution.
If it is true, as a matter of simple description, that the unborn child is a human person [and no scientist that I know of doubts this descriptive statement];
and if it is also true that the preservation of human life is one of the declared public premises of our republic ["We hold these truths to be self-evident, . . . that [all men] are endowed by their Creator with certain unalienable rights, that among these are Life, . . ."];
then, abortion which takes the life of a human person is, by definition, not a private matter ["an intimate and personal choice"], but a threat to the public peace.
abortion subverts the rule of law. The decisions in Roe and thereafter have weakened first amendment free speech jurisprudence, by creating in the courts and in this Congress the perceived necessity of dealing with abortion protest as a "special case"; has deformed foreign policy as America has sought to export its abortion ethic abroad as a condition on foreign aid or in international conferences, like that in Beijing (1995) and Cairo (1994); and further aggravated federal-state relations as when the receipt of medicaid funds is conditioned on the mandatory provision of abortion.
III. "Arbitrary Legislation" From the Bench -- An Inside Look at the Making of Roe v. Wade
Despite the Supreme Court's putative "reaffirmation" of part of Roe in Planned Parenthood v. Casey, these opinions remain highly contentious because the constitutional premises upon which they rest are so wholly erroneous as to be non-existent in law. The writer Santyana enjoins us to learn from history. Recently, the lessons to be learned from the history of the abortion cases have come into sharper focus because of the donation of the late Justice Thurgood Marshall's papers to the Library of Congress. I have reviewed some of these internal Supreme Court documents, including draft opinions and correspondence in the 1971-72 period when Roe was being decided.
Do these internal Court documents reveal the hidden source of abortion's constitutional and legal legitimacy? Hardly.
None of the Justices claim there is a specific textual guarantee of abortion to be found anywhere in the constitutional document. Nor does the abortion claim find legitimacy within the background principles of common law out of which the American Constitution emerged. As Bracton records, and the draft opinions within the internal Marshall papers indicate the Justices knew, abortion has little common law support, and was clearly thought by some to be homicide. [II Bracton, On the Laws and Customs of England 341 (Thorne ed. 1968), a citation to which can be found in Justice Blackmun's 4th circulated draft in December 1972]. Because of the more rudimentary nature of science in the 18th and 19th centuries, the common law drew a distinction between abortions before and after quickening [16 to 18 weeks], but under English codification in 1803 both were criminal only in different degrees. When medical science advanced, the quickening distinction receded, and penalties for all abortions increased. In 1868, when the 14th Amendment was adopted, statutory prohibitions or restrictions on abortion were commonplace. Twenty-eight states of the then 37 and 8 territories banned or limited abortion. [J. Mohr, Abortion in America at 200 (1978)].
The Court's drafts also reveal that the decision was not being guided by ancient precepts of medical ethics. In this respect, the Hippocratic Oath dating back three to four hundred years before Christ, had doctors pledging that they "will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner . . . not give to a woman a pessary to produce abortion." [The 4th circulated draft of Justice Blackmun's opinion in Roe cites the Hippocratic Oath, but cavalierly dismisses it on the basis of academic writing that found it to be held as true only within Pythagorean Greek culture. Why the Pythagoreans should be so ill-treated, or deemed uninfluential, is not explained. Indeed, the Oath, which coincides with prevalent Christian belief since the end of antiquity, became the "nucleus" of medical ethics.]
But neither text, nor the common law, nor medical ethics as embodied in the Hippocratic Oath was to steer the Supreme Court in its discovery of a non-textual abortion right. What did guide the Court? I regret to say, little more than pragmatic, expedient politics; an exercise in judicial will, not judgment.
When Roe [and its companion case, Doe v. Bolton] were first argued in late 1971, there were only 7 members of the Court. Justices Harlan and Black had both recently retired, and would shortly thereafter, die. While many of us associate the abortion right with Roe's author, Justice Harry Blackmun, mid-December 1971 correspondence actually identifies William O. Douglas to be the strongest advocate for abortion as an extension of his earlier opinion in Griswold v. Connecticut, 381 U.S. 479 (1965) invalidating a Connecticut law limiting the use of artificial contraception. [Letter from William O. Douglas to Chief Justice Warren Burger, dated December 18, 1971]. Following oral argument, the Justices discuss cases and take a straw vote. The senior justice in the majority [or the Chief Justice if he is in the majority] then usually assigns the opinion writing. Chief Justice Burger reports that the discussion following the first [Roe] argument was so confused, that there were "literally not enough columns to mark up an accurate reflection of the voting." [Letter from Warren Burger to William O. Douglas, dated December 20, 1971]. Out of expedience, perhaps, Burger assigned the draft writing to Blackmun, his fellow Minnesotan. This infuriated Douglas, since Blackmun was perceived by Douglas as then favoring state abortion restriction. [Blackmun had been appointed to the Court by President Nixon about a year earlier]. By mid-January 1972, Blackmun had looked at the cases and found the issue so unclear that he urged the Chief Justice to ask for re-argument in both Roe and Doe. [Letter from Harry Blackmun to Warren Burger, dated January 18, 1972].
Douglas steadfastly resisted reargument. Matters dragged on nonetheless and by mid-May, 1972, Justice Blackmun tried to rid the Court of the issue on procedural grounds -- namely, that the Texas statute was too vague to be enforced. He wrote: "I think that [vagueness] would be all that is necessary for disposition of the case, and that we need not get into the more complex Ninth Amendment issue." [Memorandum to Conference from Harry Blackmun, dated May 18, 1972]. This did not suit Justice Douglas, who argued that there were at least 4 votes [enough for a majority on an understaffed Court] that "an abortion [may] be performed by a licensed physician within a limited time after conception." [Letter from William O. Douglas to Harry Blackmun, dated May 19, 1972]. Douglas must have talked with Justice Brennan, because at about the same time Brennan by letter gives his support for the abortion proposition in almost identical language; namely, that "an abortion be performed by a licensed physician within some limited time after conception." [Letter from William Brennan to Harry Blackmun, dated May 18, 1972].
Several things are striking about this internal correspondence beyond, of course, Justice Blackmun's change of posture from assigned draftsman to abortion advocate and the overall bewilderment of the Court after the case was first argued. First, there was considerable internal pressure to get a decision, perhaps before new members of the Court might change the outcome. [Nixon appointees' Lewis Powell and William Rehnquist replaced Black and Harlan; as it later turned out, Powell and Rehnquist split over the issue]. Douglas, in particular, seemed especially agitated to push the opinions out, writing "I feel very strongly that [Roe and Doe] should not be reargued. . . . I hope the 5 can agree to get the cases down this Term, so that we can spend our energies next Term on other matters." [Letter from William O. Douglas to Harry Blackmun, dated May 31, 1972]. Second, the internal correspondence is almost completely devoid of what one could call constitutional argument. Instead of a careful examination of the common law or argumentation premised upon the textual provisions of the Constitutional document, there is merely vote counting and assertion. Third, taking Justices Douglas and Brennan at their word, the initial 4-person majority envisioned only a very narrowly-worded abortion privilege -- one that would be confined to a limited time after conception. The last point is particularly striking in light of President Clinton's insupportable claim and recent veto that the abortion license formulated by the Court extends even to the most graphically hideous procedure and to the moment of birth.
By late May, Justice Blackmun had fully joined the Douglas-Brennan circle [which also included Potter Stewart and Thurgood Marshall] in favor of creating an abortion right. [Memorandum to the Conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect highly legislative considerations almost exclusively. For example, he proposes to invalidate most of the Georgia statute, except maybe those requiring an abortion to occur in a licensed and accredited hospital. [Memorandum to the Conference from Harry Blackmun, dated May 25, 1972]. Demonstrating that none of these specific invalidations were rooted in constitutional text or history, however, Justice Blackmun holds open the possibility, like a good legislative lobbyist, that may be "some of you may wish to take that step, too [that is, allowing abortions outside hospitals]." [Id., the Court did take that step.] The particulars of the Court's legislative considerations still tangled, Justice Blackmun, at month's end, urges that Roe and Doe be reargued. [Memorandum to Conference from Harry Blackmun, dated May 31, 1972].
The cases were reargued, but only over Justice Douglas' extraordinary and harshly written protest. [An internal Letter from William O. Douglas to Warren Burger, dated June 1, 1972, threatens "[i]f the vote of the Conference is to reargue, then I will file a statement telling what is happening to us and the tragedy it entails." Justice Douglas filed a published written dissent to setting the cases over for reargument]. Perhaps, the key to understanding why the Court, notwithstanding Douglas' protestations, pursued reargument lies with the gentlemanly prodding of new Justice Powell. As mentioned, Powell had recently joined the Court, and he asked politely for reargument, pointing out that "Harry Blackmun, the author of the [draft] opinions, thinks the cases should be carried over and reargued next fall. His position, based on months of study, suggests enough doubt on an issue of large national importance to justify the few months delay." [Memorandum to the Conference from Lewis Powell, dated June 1, 1972].
Months of study? Having read the file history in this dark episode, Justice Powell's words are far too benign. Except for the exchange of personal opinion or medical speculation, there is no evidence of constitutional study or consideration. Only Chief Justice Burger attempted to anchor the discussion in the Constitution, expressing the patent federalism objection that "the states have, . . ., as much concern in this area as in any within their province; federal power has only that which can be traced to a specific provision of the Constitution." [Memorandum to the Conference from Warren Burger, dated May 31, 1972]. There is little other argument or discussion in the internal correspondence touching upon the substance of constitutional law.
The cases were reargued in October 1972. In November, Harry Blackmun writes the final drafts of opinions that today we know rather infamously as Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). Again, no real discussion of law occurs in the internal deliberations; instead, there is the startling admission from Justice Blackmun in the presentation of his near final draft that "you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." [Memorandum to Conference from Harry Blackmun, dated November 21, 1972, emphasis added].
So, there you have it. A confession by the principal author of the most infamous decision in this century, and perhaps after Dred Scott, ever, revealing that arbitrary choice -- not discernment of the law of the land -- accounts for the result in Roe. Law, legal history, constitutional allocations of power, all ignored. The abortion right derives not from background principles of common law; not in the first principles of our constitutional republic; not as a result of careful parsing of constitutional text. The application of lethal force to the innocent unborn can be found neither in the records of the drafting of the 14th amendment, nor the accounts of that amendment's ratification. The respect due the structural reservation of health, safety and moral questions to the states under the 10th amendment was forsaken as well.
It is upon this lawless foundation that the Court has authorized the "arbitrary" extermination of roughly 1.5 million unborn children each year, ever since. Indeed, the arbitrariness of the life line pulled from the grasping hands of the innocents in Roe is even more manifest in last minute tinkering with the opinion. Between late November and the end of the year, Blackmun observes how he's thinking about moving what he called previously the "critical" line from the end of the first trimester to viability. He admits that he chose the end of the first trimester largely for marketing reasons, writing: "I selected the earlier point because I felt that it would be more easily accepted (by us as well as others). . . ." [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972]. He is hesitant, however, if moving the line would cost him votes on the merits. ["I would be willing to recast the opinions at the later date (viability instead of the end of the first trimester), but I do not wish to do so if it would alienate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum." [Id.]
The viability line thus has no constitutional significance. It is Justice Blackmun's arbitrary choice. It is also a choice that reveals no consideration of the unborn child's interest, and virtually no acknowledgment of state legislative authority. Rather, the viability line ultimately gets chosen by the Court to simply maximize the opportunity for young women especially to undergo abortions. Justice Blackmun writes: "many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed. [Memorandum to the Conference from Harry Blackmun, dated December 11, 1972].
All these years, we've been imperiously told by the Court that Roe deals with the issue of whether a woman should be forced to bear a child; in fact, it deals with whether a woman has sufficient time to get an abortion after she has decided to bear a child. Convenience thus became constitutional principle.
A few of the justices were squeamish. Justice Potter Stewart wondered "about the desirability of the dicta being quite so inflexibly 'legislative,' suggesting that he might extend to the States more latitude to make policy judgments." [Letter from Potter Stewart to Harry Blackmun, dated December 14, 1972]. The flexibility was not to be, though Justice Blackmun in a small concession urged that the "cases . . . come down no later than the week of January 15 to tie in with the convening of most state legislatures." [Memorandum to Conference from Harry Blackmun, dated December 15, 1972]. A professional courtesy perhaps to fellow legislators.
Of course, a Court that engages in practices well beyond its Article III function to decide "cases or controversies" under the principles and usages of established law, needs its own press office to put, as political figures say today, the proper "spin" on matters. Writing that he "anticipate[d] the headlines that will be produced over the country when the abortion decisions are announced," Justice Blackmun prepared an 8-page press release personally. [Memorandum to the Conference, with press attachment, from Harry Blackmun, dated January 16, 1973].
Press release in place, the rest, as they say, is history -- a sad and tragic history that denies the sanctity of human life, not because the Constitution requires it, but because seven men decided to legislate from the bench -- and by their own admission, arbitrarily at that.
This revealing look at the artifice we know as Roe v. Wade, suggests how little deference, at least as an example of constitutional jurisprudence, the opinion deserves. It grieves me more than I can say to reach this conclusion or to write in this disparaging way about the work of any member of the Court, including Justice Blackmun. As a law professor, I take it as duty to instill respect for the rule of law, and the Justices who conscientiously seek to administer it. Indeed, many of those I have taught over the past twenty years will report that I have reserved my strongest classroom criticism for any student who seeks superficially to understand Constitutional law by counting votes, or by some type of politico-psycho-analytic speculation into a given Justice's personality. In light of what I have now discovered in the Court's files, however, I am fearful that I may owe these more cynical students an apology.
It was, after all, Justice Blackmun, himself, in Casey, who echoed the sentiment of the plurality that "a decision to overrule Roe 'would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to a rule of law.'" 112 S.Ct. at 2845. In truly Orwellian terms, Justice Blackmun then scowled at the four dissenting justices, with the comment: "What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch." Id.
This is a skeptical age and for those more generally inclined to be distrustful of public figures and events than myself the history recounted here may not impart the same level of surprise, as it disappointingly conveys to me. In light of these revelations, however, I now better understand Chief Justice Rehnquist's strong criticism of Justice Blackmun for "mak[ing] . . . decisions [in the abortion context] with a view toward speculative public perceptions," Casey, 112 S.Ct. at 2866 (Rehnquist, C.J., dissenting. Possibly, the Chief Justice merely was recalling from internal memoranda that Roe was constructed largely upon personal preferences and an accompanying press release. This may also explain why Justice Scalia, who was not on the Court when Roe was decided, could plaintively wonder in dissent in Casey why the Court skirted the fundamental question of "how wrong was the decision on its face?" 112 S. Ct. at 2875.
In concluding his dissent in Casey, Justice Scalia thus opines:
How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, . . .) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. . . .As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here -- reading text and discerning our society's traditional understanding of that text -- the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; . . . then the people should demonstrate, to protest that we do not implement their values instead of ours. . . . Value judgments, after all, should be voted on, not dictated; . . ." 112 S.Ct. at 2884-85.
A stunned, almost numbed silence settled upon many Americans following the Court's decision in Casey. Some turned inward toward their own churches, families, and communities, feeling abandoned or marginalized by what the Court had pretended to do in the name of their Constitution. Perhaps to partially counteract the Court's stubborn refusal to re-examine its wrong-headed legal precedent, private initiative responded with over 3,000 pregnancy care centers in the United States supplying medical, educational, financial, and spiritual assistance to women who carry their unborn children to term. There are also reforms underway in the states simplifying adoption procedures and encouraging married couples to adopt. Congress, too, has maintained some restrictions on the public funding of abortion, even as the Clinton administration has aggressively pursued the public [medicaid] funding of abortions and mandated, perhaps at one time even contrary to the law of this Congress, abortion counseling.
The Court's decision in Roe effectively blocked the state legislative process. In the years between Roe and Casey, few state laws survived the Court's imposed value preference allowing the application of lethal force to be applied against the unborn. In Casey, the Court slightly loosened its grip, and brief waiting periods, informed decisionmaking, minor reporting requirements, and parental consent with judicial by-pass, were tolerated by the Court. It seemed, for one transient moment, that Justice Scalia may have been a bit too pessimistic when he wrote that "Roe's mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." 112 S.Ct. at 2882.
But then came President Clinton's veto of the ban on the cruel, medically unnecessary and legally unjustified partial-birth abortion procedure, and once again, even Casey's fragile truce was abrogated. What the Court grudgingly and marginally allowed in Casey -- the opportunity for sincere American citizens to petition and be heard by national and state legislative assemblies in order to stop a single, modest aspect of the destruction of innocent human life -- President Clinton ended gratuitously with his veto pen.
Oh, to be sure, the American people were once again favored with a reassuring press release, this time by the President. But like the first press release issued by Justice Blackmun to accompany Roe, the President's words on close examination, and unobscured by the personal tragedies of others, provide less reassurance, than deception. To slightly paraphrase again the dissenting voices in Casey, "By 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 hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court, [and now President Clinton,] merely prolongs and intensifies the anguish." 112 S.Ct. at 2885.
This Congress ought not remain idle while the republic endures the anguish of the judicial legislation that is abortion. I do not know if the President's grievous error compounding that of the Court can be overridden. I know only that the people have been overridden, by its Court and now by its Executive, illegitimately.
Earlier it was noted that abortion mocks the first principles of our republic articulated in the Declaration of Independence. Because this is so, some have argued that these first principles should be enacted promptly and directly into law. However, the reality of the present situation indicates that some Americans are not prepared to accept laws that reflect the simple objective or descriptive truth of life, itself. Obviously, President Clinton has placed himself within this category. Does this mean the Congress can do nothing?
No, in my judgment, the immediate task for Congress is to continue to employ means that can bring the public law closer to foundational first principle. In other words, what the Congress undertakes through new law must be guided by the prudence of the possible. These prudential concerns can be stated as questions:
(1) In comparison to the public laws in place, does a proposed new law move in the direction of greater harmony between the first principles of the Declaration, on the one hand, and the public or positive law, on the other?; and
(2) Has the Congress helped to shape a society where first principle and public law are not in conflict; in other words, has the Congress been successful in laying the groundwork for the acceptance and enforceability of a proposed new, more restrictive, abortion law?
Did the Partial-Birth Abortion Ban Act meet these prudential considerations? Clearly, the Partial-Birth Abortion Ban Act satisfied the first prudential consideration, but the President's own misinformation or misstatements, whether or not deliberate, indicate that the second criterion was not fully achieved. This is not so much a cause for despair, but initiative, including, by way of nonexhaustive example: education campaigns that can convey through appropriate intermediate and community associations the life-destroying reality of partial-birth and other abortion procedures; greater public assistance to care-centers that assist women in carrying children to term; the public underwriting of a national study of the cost and complexity of adoption and the crafting of model legislation that state's might employ to facilitate adoption; and the elimination of public subsidy for abortion or abortion counseling, at home or abroad.
In short, the political and tragically erroneous holdings in Roe and Casey do not prevent the Congress from using its funds and resources from favoring childbirth over abortion. Obviously, too, the Senate in discharging its judicial confirmation function needs to identify potential federal judges and justices who will not wander well beyond their intended Article III judicial functions, as the history of Roe recounted here reveals Justices Douglas and Blackmun to have done. The men and women chosen for these positions of trust and responsibility must be respectful of our Nation's first principles.
These suggestions, and others, are not intended as alternatives to new laws, such as the Partial-Birth Abortion Ban Act, but merely as a realistic assessment of the preconditions that may first have to be created in this culturally-troubled time if positive law and first principle are to be brought into better agreement. I hope this advice proves to be useful as the subcommittee continues its vital efforts in behalf of human life.