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United States Supreme Court Justice Ruth Bader Ginsburg
A PRO-ABORTION REVERSAL OF ROE?

June 14, 2013
Wesley J. Smith

http://www.firstthings.com/onthesquare/2013/06/a-pro-abortion-reversal-of-roe
Pro-lifers continually pray for the reversal of Roe v. Wade. And with many on both sides of the abortion divide now agreeing that the decision is badly flawed, that could happen one day. But what if the overturn comes from the other direction?

The potent possibility of a “reverse reversal” (if you will) hit me while listening to pro-life lawyers discuss the current status of abortion litigation at a University Faculty for Life Association Convention, at which I had been invited to speak. Not being involved with abortion jurisprudence, I was interested to hear about the current state of the law in this contentious field.

Roe and its progeny cases, such as Planned Parenthood v. Casey, left room for pro-life advocates to deploy subversive legislative and litigation strategies that have opened significant cracks in the once unbreachable judicial wall around the abortion right. For example, court rulings have permitted the outlawing of most late-term abortions, a ban on “partial birth abortion,” mandatory waiting periods, ultrasound testing, and building code regulation of abortion facilities—all contributing to a substantial reduction in annual terminations.

Almost as an aside, one of the seminar presenters noted the implacable opposition of Supreme Court Justice Ruth Bader Ginsburg to this limited right to regulate status quo. Ginsburg believes adamantly that women are denied “equal citizen stature” by boundaries placed around access to abortion. Not only that, but in an angry dissent to the 2007 Supreme Court ruling upholding the federal ban on partial birth abortion, she (joined by Justice Breyer among the current justices) railed against the majority allowing “moral concerns” to “override fundamental rights.”

That sounded to me as advocacy for an unfettered right to abortion at any time and for any reason. So, I asked expert anti-abortion attorney Clarke D. Forsythe—the senior counsel for Americans United for Life—whether Ginsburg’s view would abolish all abortion regulation. Yes, he told me: If the right to an abortion were based on “equal protection of the law,” as opposed to other constitutional standards, it would “permit no regulations at any time,” perhaps even, “requiring [government] abortion funding.”

In other words, even though the most well-known anti-Roe efforts are aimed at overturning the case to permit greater state regulation, a significant—if quieter—counter-push seeks to (essentially) overturn Roe by making the abortion right virtually absolute. At the very least, it would repair those cracks in the protective wall.

As an article in the UCLA Law Review supportive of the equal protection standard put it, “Crucially, once the Supreme Court recognizes that people have a right to [abortion] by virtue of equal citizenship,” the right would be “on a stronger legal and political footing,” making it far less susceptible to the current pro-life strategy of “chipping away.”

As if that weren’t enough, I thought about how Roe had permitted some limits on abortion based on the “important and legitimate [state] interest in protecting the potentiality of human life,” an interest that the Court ruled becomes “compelling” at the point of fetal “viability.”

But many powerful voices no longer consider “human life” to be a morally relevant category. For example, the mainstream bioethics movement argues that what matters morally isn’t being “human” but possessing sufficient mental capacities—such as being self-aware—to be considered a “person.” In this view, only persons have a right to life. Since a fetus does not possess personhood capacities at any time during gestation—contrary to Roe—the state has no interest in protecting fetal life even after viability.

Now, add a third element to the equation: Roe was intended to settle the abortion issue once and for all. It clearly didn’t do that. Many frustrated pro-choicers still dream of obliterating all impediments to abortion on demand.

New York Governor Andrew Cuomo’s recently announced plan to permit the termination of viable fetuses to protect the mother’s “health” illuminates the potential path ahead. Roe’s companion case, Doe v. Bolton, defined “health” broadly as including “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the [pregnant] patient.”  Replacing “health” for the current life-of-the-mother legal standard for post-viability abortion, Forsythe warns, would harness Doe’s “limitless definition,” resulting in a virtually unlimited late-term abortion license.

Relevant to the overturning of Roe from the other direction, Forsythe says that, “As a matter of policy, Cuomo’s bill would do in New York what Ginsburg’s judicial view would impose across the nation.”

Finally, assume a United States Supreme Court in which Justices Clarence Thomas and/or Antonin Scalia have been replaced by Ginsburg-thinking replacements. A new 5—4 or 6—3 majority could then exist to make equal protection the primary pillar supporting the abortion license, perhaps also installing “personhood” in place of “humanhood” as the relevant legal standard for applying a right to life.

That—and not a pro-life reversal—could be the end of Roe v. Wade.

Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. He also consults for the Patients Rights Council and the Center for Bioethics and Culture.

Comments:
6.14.2013 | 1:04am
Joseph says:
A very perceptive prophecy. I agree that dents in Roe’s armor do not destroy the armor. They inspired people to get new, dent-free armor.
6.14.2013 | 8:14am
Michael PS says:
I do not believe personhood and the right to life have the importance as is sometimes assumed.

French law explicitly recognises the right to life. Art 16 of the Code Civil declares, “Legislation ensures the primacy of the person [la personne], prohibits any infringement of the latter’s dignity and guarantees respect for the human being [l’être humain] from the outset of life.” According to most jurists, “person” and “human being” are here synonymous.

This principle is repeated in Art 1 of the Veil Law (Law No. 75-17 of January 1975, concerning the Voluntary Termination of Pregnancy), “The law guarantees respect for every human being from the outset of life. There shall be no derogation from this principle except in cases of necessity and under the conditions laid down by this Law.”

Despite this rhetorical flourish, the Veil Law allows an abortion to be performed before the end of the tenth week of pregnancy by a physician in an approved hospital when a woman who is “in a situation of distress” because of her pregnancy requests the abortion. If two physicians certify, after an examination, that the pregnancy poses a grave danger to the woman’s health or if a strong probability exists that the expected child will suffer from a particularly severe illness recognized as incurable, an abortion may be performed at any time.

The fact is that the National Assembly, unwilling to sanction “a woman’s right to choose,” or, as the radicals were arguing, the principle that “the product belongs to the producer,” chose to represent abortion, not as a right, but as a derogation from a right, namely, the child’s right to life.

The distinction is not entirely vacuous; a derogation can be subject to limitations, in ways that a right cannot.
6.14.2013 | 9:39am
harry says:
“A new 5—4 or 6—3 majority could then exist to make equal protection the primary pillar supporting the abortion license, perhaps also installing “personhood” in place of “humanhood” as the relevant legal standard for applying a right to life.”

Personhood has been the relevant legal standard for the granting of rights since Roe. This fundamental mistake is what enabled the “legal” enslavement of millions of Blacks who were not fully legal “persons” under the law. It enabled the “legal” killing of millions by the Nazis. It has enabled the “legal” killing of nearly sixty-million American children since Roe.

Such things happen when “person” and “human being” are no longer considered synonymous under the law. The ramifications of this are huge. If those in power get to decide who is a legal “person” and who isn’t, and only “persons” have rights, then all our rights are bestowed upon us by the government and can be withdrawn by it – there are no rights that are intrinsic to our humanity, that don’t come from the government.

This view of rights is contrary to that of our Founders, for whom the fundamental purpose of government was the protection of our intrinsic, or “unalienable,” human rights. When those in power decide which humans are persons and which are not, bestowing upon favored segments of humanity the rights to exist and withdrawing it from other segments, then the government has become the antithesis of that of America’s founders, who asserted that whenever the government does not protect the inalienable rights of humanity it was the right and duty of the people to alter or abolish it. In short, it is the people who bestow and withdraw the government’s right to exist, not the reverse.
6.14.2013 | 10:04am
Dan LaHood says:
That a Jew in a position to decide questions such as these uses this criteria is, I don’t know the word, I just don’t.

Justice Ginsburg:Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.
6.14.2013 | 10:07am
Guest says:
But what if future generations, those that survived the womb, decide that they do want to regulate the termination of life, would they be allowed to come to such as decision and implement it or would the Court simply veto any such legislation so long as the current verdict remained in tact? And what about parental education rights? Would parent be allowed to tell their kids that terminating life in a womb is evil? And what’s the end game here? Abortion w/o appointment on demand totally paid for by gov. including rehab.? But EVEN if that were to happen which it never will it would still not eliminate the fact that sex = babies and the only place that a new person has EVER come from is…a women!

Ok this will sound morbid but how about this solution for the extremists: you have a choice…a real choice.

1. Abortion is regulated etc. and if that offends you, you have a gov. paid option 2.

2. a hysterectomy that 100% eliminates your reproductive capacity.

I think this would finally allow the extremists to be become what they want: men.

PS This whole business is disgusting. We think it’s like popping a pimple but I’ve seen both my kids at 2 months and they have little hands and feet and a head with a brain and you know what? They’re CUTE!
6.14.2013 | 10:27am
anonymous says:
The claim that “what matters morally isn’t being ‘human’ but possessing sufficient mental capacities—such as being self-aware—to be considered a person’ ” is rather frightening. It seems to me that the language abilities are the true mark of “personhood”, and therefore a parent should have the right to terminate a pregnancy up until the time the child can speak (and beg for mercy). I.E., I would argue for the legalization of infanticide. After all, until the child can earn its own way, it is basically a “parasite”, and an “aggressor” against the people who must care for it.

I mentioned this idea to someone more strict in his interpretation of the passage from mere “human-ness” to actual “personhood” – he suggested that the criterion used be the ability to solve ordinary linear differential equations.

The actual criteria is merely a detail, once you have the basic policy in place. Hitler would have been pleased.
6.14.2013 | 11:40am
andrew says:
Being an “equal citizen” = having the right to kill babies. Sure makes a lot of legal sense to me…. Nice new definition of “citizen.” And “equal?” Yep, that too.
6.14.2013 | 12:20pm
JERD says:
Reading about legal gymnastics brings me down to earth. High wire balancing and trapeze flips in a court room will not get us out of the culture of death thicket. Hearts and minds need to be changed.
6.14.2013 | 1:21pm
Mary says:
One notes that self-awareness is pulled out of the hat, like a rabbit, to dehumanize the babies. Anyone who actually thought would realize its little flaw: it means that we can not be murdered in our sleep.
6.14.2013 | 1:28pm
patricksarsfield says:
People who want to kill others often define them as not being “human” or if that is not selling, they insist the morituri are “non-persons” for purposes of the US Constitution In German, the Killing Movement used the term “untermenschen” to describe those they would kill. Here, the term de jour is: “fetuses.” And sometimes when they really get on a roll: “blobs of protoplasm.”

However, just because they want to kill doesn’t mean we need to go along with the killing. And what they call “jurisprudence” is really “sophistry” or to use a term they often employ when it suits their agenda: “hate speech.”
6.14.2013 | 2:19pm
gw says:
If the pro-life movement wants to generate any sort of meaningful change on the abortion front it will need to stop putting its trust in legislation and litigation. Laws may make the job of justice easier to do, but they don’t make justice happen on their own. Abortion isn’t so much a legal problem as it is a justice problem. Legal problems belong to the government. Justice problems belong to me.
6.14.2013 | 2:36pm
Stephen W. Reed says:
If the standard for “personhood” is, as those Smith describes as “mainstream” ethicists would have it, “possessing sufficient mental capacities—such as being self-aware,” that does not bode well for the aged who have encountered encroaching dementia or Alzheimer’s disease. By that rule, society should be allowed to dispose of them since they must, necessarily, have ceased to be persons. God help us!