January 15, 2013
In a key passage in the infamous Roe v. Wade ruling of 1973, Harry Blackmun, author of the majority opinion says this:
“… We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
It would seem that Justice Blackmun was expressing a becoming intellectual modesty. We don’t know when human life begins. And the experts that courts often turn to don’t know either. So it would be best not to “speculate” about the answer to that “difficult question.”
Ronald Reagan did not attend Harvard Law School, as the media is only too happy to point out. Like President Obama, Harry Blackmun did attend Harvard Law School. Still, President Reagan thought if we were in doubt as to whether an unborn child was a human life, wouldn’t it be better to err on the side of life?
Ironically, the former Dean of Harvard Law School, Archibald Cox agreed with Reagan, at least about the poor job of legal reasoning undergirding Roe v. Wade. As my friend, Jack Fowler, of National Review noted appreciatively at the time of Cox’s death in 2004, this famed Kennedy Democrat put his finger on the fatal flaws of Roe v. Wade.
[“Blackmun’s opinion] fails even to consider what I would suppose to be the most important compelling interest of the State in prohibiting abortion: the interest in maintaining that respect for the paramount sanctity of human life which has always been at the centre of Western civilization, not merely by guarding life itself, however defined, but by safeguarding the penumbra, whether at the beginning, through some overwhelming disability of mind or body, or at death.”
Archibald Cox went on to say of Blackmun’s work:
“The failure [of Roe v. Wade] to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child-birth and abortion or new advances in providing for the separate existence of a foetus… . Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.”
We know from Bob Woodward’s book, The Brethren, that Harry Blackmun was desperate for respect. He felt his Harvard Law degree entitled him to that measure of regard that he had thus far in his life failed to attain. Roe was to be his legacy, his fiery boat to judicial Valhalla.
He cannot have been pleased that some Supreme Court clerks—pro-abortion as they were—were dismissive of his work. Behind his back, they referred to his opus as “Harry’s abortion.”
Stanford University Law School Dean, John Hart Ely, is one of those whose respect Harry Blackmun craved. He didn’t get it. Although Ely was pro-abortion, he dismissed Harry’s Roe opinion:
“[Blackmun’s ruling in Roe is bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.”
Science has never been in doubt. California Medicine was the official journal of that state’s medical society. Although in favor of liberalized abortion, they let the scientific cat out of the judicial bag when they wrote this in 1970, several years before Roe v. Wade (1973).
The result [of the abortion debate] has been a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death. The very considerable semantic gymnastics which are required to rationalize abortion as anything but taking a human life would be ludicrous if they were not often put forth under socially impeccable auspices. It is suggested that this schizophrenic sort of subterfuge is necessary because while a new ethic is being accepted the old one has not yet been rejected.
Note that phrase: “socially impeccable auspices.” The argument that the unborn child is not a human being would be “ludicrous” if it were not being made by socially impeccablefolks.
Socially impeccable, like Barack Obama. In 2008, Mr. Obama told Rev. Rick Warren that the question of when the unborn child comes to possess any rights is “above my pay grade.” Modestly stated.
The policies pursued by President Obama since he rose to the highest pay grade have been anything but modest. He has pressed for the greatest expansion of abortion since
Roe v. Wade. He demands we subsidize abortion through our taxes, through insurance coverage under Obamacare, through U.S. contributions to the abortion traffickers of International Planned Parenthood and the UN Fund for Population Activities. He has turned the U.S. State Department into a marketing firm for abortion worldwide. No modesty there.
As for Roe, it resembles a judicial Berlin Wall. It’s ugly. It’s offensive. It’s an affront to justice and mercy, to law and logic. But it does what its builders intended it to do. And we are left with its tragic consequences.