First We Defend Law, Then We Defend Life:
What the Pro-Life Movement Needs After Decades of Failure
by Kerry L. Morgan
III. Failed Plans That Deserve to Fail
In lieu of these appropriate Constitutional remedies, however, the pro-life community has demanded protection for the “right to life” without first demanding accountability to the “rule of law.” This strategy is like demanding chastity from prostitutes or honor among thieves. The pro-life community’s approach to Roe v. Wade is not to embrace remedies which are or were within its political hand but, rather, to wait for the judicial malefactors to retire or die and then encourage the appointment of pro-life justices. This is hardly an activist strategy wait until they die. Essentially, this “avoid law” approach has been justified as a means to cajole Republican Presidents to appoint pro-life candidates. In this respect, the pro-life movement has both failed and been duped by con-artist Republicans.
For instance, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) regarding informed consent, Republican appointees Stevens, O’Connor, Kennedy, and Souter voted to affirm the holding of Roe. Republican Presidents have appointed seven of the current nine justices of which four of the seven voted to affirm Roe. Yes, affirm. This is not a strategy of overcoming lawlessness. In every election, Republican presidential hopefuls play the same political trump card claiming that unless a Republican is elected president, Roe will never be overturned. Prostitutes only have one thing to sell and the Republicans sell fear every four years. Stevens was a Ford appointee. O’Connor and Kennedy were Reagan appointees. Souter was a Bush appointee. Three Republican Presidents failed to deliver. What evidence do we have to believe that a fourth Republican President will make the difference even if he has the Senate with him and has a vacancy?
As for the pro-life appointees, Rehnquist, appointed by Nixon, Scalia by Reagan, and Thomas by George Bush Senior–these justices have only opined that they appear poised to “reconsider” Roe. Even the pro-life Republican appointees are timid. They too believe that their opinions are the supreme law of the land and that Roe is law. This is the real problem with the conservative justices. Republican Presidents had seven appointment chances and came through only 42 percent of the time. This is not a winning strategy. It is a Republican strategy to use the pro-life vote for its own political gain and to deceive dedicated pro-life activists into believing we are making progress well, at least 42 percent of the time, which means zero percent in practice.
Or consider the recent case of Stenberg v. Carhart, 530 U.S. 914, 931 (2000), striking down Nebraska’s law prohibiting partial or live birth abortions. The statute prohibited partially delivering a living unborn child, intentionally killing an infant or completing the delivery of a then dead child. Justice Breyer delivered the opinion of the Court, in which Justices Stevens, O’Connor, Souter, and Ginsburg joined. The majority predictably observed that “considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose. Roe v. Wade, 410 U. S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). We shall not revisit those legal principles.” They cite themselves, not the Constitution, for their “legal authority.”
Chief Justice Rehnquist, and Justices Scalia, Kennedy, and Thomas joined together in dissent. Justice Scalia’s dissent was the most articulate and vitriolic, yet it stopped short of demanding that Roe be overruled. To his credit, however, he observed that the “Court, armed with neither constitutional text nor accepted tradition . . . should return this matter to the people — where the Constitution, by its silence on the subject, left it — and let them decide, State by State, whether this practice should be allowed.” This is a defense of law though weak. At least he demanded that Casey should be overruled, but only because its test was unworkable, not because it was lawless to begin with.
Justice Kennedy also felt betrayed and argued that Roe, being good law, did not warrant the present result. The Chief Justice and Justice Thomas argued that “Casey professed to be, in part, a repudiation of Roe and its progeny. The Casey joint opinion expressly noted that prior case law had undervalued the State’s interest in potential life . . . and had invalidated regulations of abortion that in no real sense deprived women of the ultimate decision.” This is hardly a striking defense of law. They strain at a gnat and swallow a camel.
The dissenters felt betrayed. They went along with Casey thinking that the case turned the corner on abortion, only to find they were duped, in part by their own vanity in judicial supremacy. The best they can muster in opposition, is that the Court is engaging in “ad hoc nullification”of statutes it dislikes. While this is true, it is hardly the point. The dissenters are unable to recognize that Roe is simply not law.
If we want to reverse Roe, lawyers are going to have to argue in Court, in the halls of the Executive Branch and in the Legislature — that Supreme Court opinions are not law; that Roe is not law; that Roe is not good evidence of law; that Roe is lawless and ought not be followed by any government official, State or federal; and that the most senior members of the pro Roe majority should be impeached and tried on the charge that their unwavering commitment to such a lawless decision contravenes the good behavior requirement of the Constitution.
In addition to the lamentable “Republican Presidents will appoint pro-life Justices” strategy, the pro-life community has parroted the dissenter’s feebleminded strategy of arguing that we should accept Roe‘s legal framework and then embrace both State and federal legislation designed to regulate lawful abortion or curtail it in the last tri-mester of pregnancy. Of course, abortion is a matter of State criminal law and there is no basis in the Constitution to federalize it through Congressional legislation or regulation. Thus, the strategy of purportedly defending the “Constitution’s integrity” (actually the Court’s treachery) is based on an unconstitutional expansion of federal power over a classic State criminal law provision. This only proves that the pro-life lawyers and lobbyists can trammel down law on par with the best judicial malefactors.
To the extent that State legislatures attempt to work within the Roe framework through informed consent, or partial-birth abortion legislation, or other imaginative legislation, they must first admit that Roe is binding as a matter of law. Thus, our stated public defense of life is premised on an acknowledgment of lawlessness and a renunciation of the principles of the Declaration of Independence. Every good tree bears good fruit, but a bad tree bears bad fruit. A bad tree of law cannot produce the good fruit of life.
Moreover, this approach of incremental State legislation based upon a false premise, by definition, will never achieve reversal of Roe because its legitimacy is falsely based on the lawfulness of Roe itself. The recent case of Stenberg v. Carhart, previously discussed, striking down Nebraska’s law prohibiting partial or live birth abortions is a classic case in point. No doubt pro-life lawyers will scour that decision in order to help their State Legislatures fit within the Court’s latest ad hoc dicta. “What might O’Connor accept?” is their inquiry. But this approach to lawyering shows what perfect fools for lawlessness we really are. We carry the Court’s dicta to the ends of the earth only to make our clients twice the heirs of lawlessness we have become. Then the lawyers ask you and I for contributions to support “the cause.”
Hope springs eternal, even against reality. After all that has been said about the misguided approach of making judicial appointments the principle mechanism to overrule Roe v. Wade, many are now renewed in their hope that the Republicans can get their judicial appointments right this time since they have a majority in both houses of Congress and a Republican in the White House. But how can appointment of a majority of pro-life justices, committed to judicial supremacy in Constitutional adjudication, be considered a victory for law?
Open the eyes wider and perhaps it will be seen that the push to appoint “pro-life” justices has essentially blinded us to the truth that the defense of law is a necessary predicate to the ultimate defense of life itself. We have failed to understand that fundamentally the appointment of a “pro-life” Court, committed to judicial supremacy, is more destructive to law itself, than even to life. Unless and until the defense of law is made the centerpiece of the pro-life movement and of judicial appointments, and not the appointment of “pro-life” justices per se, we will not experience the ultimate victory of securing the unalienable right to human life under law or restrain the judiciary to its Constitutional limits.
There is also a strong drive among pro-life conservatives to “remedy” the lawlessness of Roe by amending the Constitution. But the Constitution is not the problem. The problem is that the Court has repeatedly handed down lawless judgments affirming abortion. Amending the Constitution will not solve the law question. It will not make the Court respect the law any more than it does now. The problem is not the Constitution, but the Justices who interpret the Constitution.
Suppose there was a chicken house with a sign posted “Only Chickens Admitted.” And suppose that a fox was asked to guard that house. At some point, however, the fox decided on his own that this sign did not apply to him because it did not expressly prohibit a fox from entering. And thus, he went into the house despite the posted sign and enjoyed his stay.
Now what remedy ought there be to deal with this fox? Should we say that the fox had a right to enter the house but we need to regulate the time, place and manner associated with his entry and stay? Should we say that he has a right to enter the house as long as he leaves during the last third of the day? Should we appeal to the farmer to wait until this fox dies and replace this honorable guardian with another fox who will pledge to obey the sign before he gets the job? Why, “none of these will work” you say. What we really need to do is post another sign which says explicitly “No Foxes Allowed.” This will solve the problem we are told because the problem lies with the fox’s knowledge, not his will.
It ought to be clear, however, that the fox had no problem reading the original sign, he simply justified ignoring it And how will another sign change his approach to this now familiar practice of justifying his usurpation of the farmer’s decision to bar his entry? Will the fox simply find another justification to allow his entry sooner or later in spite of the “No Foxes Allowed” sign?
Yet this is our precise strategy today. The framers posted a sign in Article III of the Constitution which gave federal courts authority to judge cases and controversies under the Constitution. Not content with obeying this posted limitation, the Supreme Court disregarded the sign and declared it had authority to also make law and, moreover, that the other two branches of the federal government had a duty to defer to and enforce its lawmaking power. Our failed solution toward this disregard of the Constitutional sign, is to post another sign that says “No Foxes Allowed.” We falsely believe that this second sign clears the judicial foxes of any ambiguity purportedly existing in the sign “Only Chickens Admitted.” We also falsely believe that the problem is that our foxes have difficulty reading. The truth of the matter, however, is that our foxes read perfectly well.
The problem is not their literacy, the problem is their arrogance in believing that they are entitled to: 1) set aside the law of nature by an act of their judicial will; and 2) usurp Tenth Amendment recognized pre-existent power, which is reserved to the people of the States and the States respectively, to determine the meaning, scope and application of the law of nature and embody that understanding in State legislation through the constituted processes. No number of Constitutional sign posts, however clear, are a sufficient deterrent to the twin evils of idolatry against the law of nature on the one hand, and usurpation of the law of the land on the other hand.
In short, the Constitution is not defective. The remedy ought not “fix” something which is not broken. This approach involves a massive disregard of the real problem of judicial usurpation and presently existing Constitutional remedies for those abuses. Amending the Constitution closes our eyes to these twin evils with a vain hope that the foxes won’t do it again.
The sooner that the pro-life community and pro-life organizations recognize the following, the closer we will be to reviving the rule of law and overcoming the rule of lawless Justices;
Recognize that Court opinions are not law, but only evidence of law, often good, but sometimes bad evidence;
Recognize that Supreme Court opinions are not the Supreme Law under Article VI and that the oath of all state and federal officials is to support the Constitution, rather than unconstitutional judicial opinions;
Recognize that the legitimate power of judicial review is not also the power to make law;
Recognize that Roe is not Constitutional because it is the exercise of legislative power and because the Court has no power to create a human right which is contrary to the law of nature;
Recognize that the Declaration of Independence and Northwest Ordinance contain principles that bind the state governments and legitimate their existence, and that a judicial opinion that construes state power contrary to its very foundations are void;
Recognize that the defense of law is a necessary predicate to the defense of life;
Recognize that the legal remedies which have been pursued are flawed because: 1) they accept the legitimacy of the Supreme Court to make law; 2) assume the legitimacy of Roe as law; 3) fail to evaluate Roe as good or bad evidence of law; 4) expand federal power over State statutory and common-law crimes; 5) deprecate the Constitution itself; and 6) as a practical matter don’t work 58 percent of the time;
Recognize that stare decisis requires no court to follow a case contrary to the foundations of a state government;
Recognize that we need to adopt at least a threefold approach as discussed above– seek to overrule Roe on the basis that it is an unlawful usurpation of legislative power and contrary to the law of nature as expressed in State criminal statutes, make refusal to enforce Roe by executive officials the critical litmus test for political election rather than the legally meaningless “Are You Pro-life?” criteria, and pursue impeachment proceedings through Congress;
Recognize that executive and legislative elected officials are bound to 1) support the Constitution, 2) have a duty to declare judicial opinions unconstitutional where contrary thereto and 3) have a duty to consider impeachment as a remedy for usurpation,
Finally, recognize that we have no choice but to pursue these remedies. The present tactics are themselves built on a flawed view of law. Continued reliance on our own devotion to lawlessness is unlikely to receive the blessing of God or the assent of the community simply because we seek to achieve a good pro-life objective through a doomed lawless means.
Our present condition is woeful. The Congress, President and Court honor the Constitution with their lips, but their hearts and minds are far from its literal text. They profess it in vain, but their politics are but rules taught by men. Thus, they nullify the words thereof for the sake of modern political traditions. They are blind guides true enough, but we too are blind blinded to the Constitution’s principles and in love with our political party and its elevation of our sense of self-importance. Can the blind lead the blind? Will they not both fall into a pit? As we follow them along the broad road we will certainly fall into their slavish pit. Rightly condemned is the politician or judge who leads the blind astray on this road. But those who love the rule of law and disdain slavery ought and can do better then being blind and following blind guides. A return to the law will lead the blind by ways they have not known, along unfamiliar paths. It is, however, the way we must go. If we do nothing:
- God will make the sins of evil people fall back upon them.
He will destroy them for their sins.
The LORD our God will destroy them.
* Copyright © 2004 Kerry L. Morgan. Used with permission.