The Politics Of Death: Forty-Three Years And Counting

On January 22, 1973, the Supreme Court handed down a decision that radically altered America’s thinking on the abortion question. The decision, which actually involved two cases (Roe v. Wade and Doe v. Bolton), made abortion a “constitutional right.” It was a day that will live in infamy.

Ever since that black day, those who favor abortion have screamed from the housetops about their “constitutional right” to abortion. But, in truth, there is no constitutional right for such an act. In Roe v. Wade and Doe v. Bolton, the Supreme Court, instead of interpreting the Constitution, was actually engaged in judicial activism and the creation of law by judicial fiat. This has been affirmed by those on both sides of the issue. John Hart Ely, a Yale professor, and, himself, a proponent of abortion, has described the Court’s decision as “frightening.” According to Ely,

The problem with Roe is not so much that it bungles the question it sets for itself, but rather that it sets a question the Constitution has not made the Court’s business…It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be (Yale Law Journal, 82: 943,947).

Professor John T. Noonan, Jr., who was then professor of law at the University of California (Berkeley), has said,

…none of the existing legislation on abortion conformed to the Court’s criteria. By this basic fact alone [the decision] may stand as the most radical decision ever issued by the Supreme Court (Human Life Review, 1:28, 1975).

Archibald Cox of Watergate-prosecution fame said what should be obvious to all fair-minded men and women:

The decisions plainly… sweep away established law supported by the moral themes dominant in American life for more than a century in favor of what the Court takes to be a wiser view of a question under active debate…My criticism of [the decision] is that the Court failed to establish the legitimacy of the decision… [and] to lift the ruling above the level of political judgment (The Role of the Supreme Court in America, 1976).

Professor Felix Frankfurter, who himself became a Supreme Court Justice, wrote to Franklin Roosevelt in 1937:

People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution. And I verily believe that that is what the country needs most to understand (Roosevelt and Frankfurter: Their Correspondence, 1928-1945, p. 383).

It is hard for many people to believe that the highest court in the land is steeped in political activism, exalting their own “think-sos” above the Constitution, but this is exactly the case. That this is unquestionably true was pointed out by Justice W.O. Douglas who recounted that when he came to the Court, Chief Justice Hughes

made a statement to me which at the time was shattering but which over the years turned out to be true: ‘Justice Douglas, you must remember one thing. At the constitutional level…ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections’…I knew that judges had predilections…But I had never been willing to admit to myself that the ‘gut’ reaction of a judge at the level of constitutional adjudications dealing with the vagaries of due process…was the main ingredient of his decision. The admission of it destroyed in my mind some of the reverence for immutable principles” (Zorach v. Clauson, 343, U.S. 306, 314).

When one adds to this the words of former Chief Justice Frederick Moore Vinson, who said, “Nothing is more certain in modern society than the principle that there are no absolutes,” and the evidence is conclusive that the Supreme Court, instead of interpreting the Constitution, has actually been engaging in its own ongoing “Constitutional Convention.”

It is this humanistic, arbitrary, and sociological outlook concerning the law that has brought us to the current constitutional crises: How is it possible for written or abstract law (viz., the U.S. Constitution), which is based upon certain moral absolutes (i.e., the inalienable rights endowed by our Creator), to be interpreted fairly by those who actually believe there is no adequate base for law except human sentiment? Incidentally, the Congressional rejection of former President Reagan’s nomination of Robert Bork to the Supreme Court must be seen in light of this very important issue. Bork was a strict constructionist who had been quite vocal in his rejection of the judicial activism that produced the Roe v. Wade decision. The syndicated columnist James Kilpatrick has written: “We pride ourselves on saying that ‘ours is a government of law, not men,’ but the boast is empty. It is a myth, a shibboleth, a sham. At the level of the Supreme Court, ours is emphatically not a government of abstract law but a government of eight very mortal men and one woman” (Courier-Journal, Louisville, KY, July 15, 1982, p. A15). Those who were instrumental in the rejection of Bork knew that this is true and, consequently, they did not want him to be in a position to overturn Roe v. Wade. Actually, the infamous Roe v. Wade decision was only the implementation of an idea long expressed by those prominent in the law profession; namely, “When it comes to the development of a [body of law] the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions may stand in the way” (found in a letter from Oliver Wendell Holmes, Jr. to John C.H. Wu, August 26, 1926, published in Harry C. Shriver, ed., Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers, page 187). How badly did the humanists want the selfish, degrading, and utterly inhumane “right” to abortion? Badly enough to have made it their number one priority in the late sixties and early seventies.

As terrible as abortion is, it was only the opening of “Pandora’s Box.” When it was decided that babies in their mothers’ wombs do not have the right-to-life, the demons of infanticide and euthanasia were also let loose. These are but a few of the moral dilemmas facing modern man. Test-tube babies, embryo transplants, genetic manipulation, eugenics, cryobiology, etc., are more examples of the plethora of technologies that are inundating and sweeping away forever the ethical and moral principles that have made us who we are. Many of the hard, tough decisions we talked about in the early eighties have been made and we are reading about them in our newspapers and seeing and hearing about them on our televisions. Unfortunately, too many of these decisions are being made incorrectly. The Biblically rooted ethical base that has served us so well in the past must be resurrected or our culture, as we have come to know it, will cease to be. The lid to Pandora’s Box cannot be easily put back in place. And even if we are able to do so, I am afraid the phantoms that have been released will continue to haunt and seduce us in the coming years.

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