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| Supreme Court |
In a 1916 interview, Henry Ford told Chicago Tribune reporter Charles N. Wheeler, “History is more or less bunk. It's tradition. We don't want tradition. We want to live in the present and the only history that is worth a tinker's dam is the history we make today."
Historians vehemently disagree, but there is a gathering
consensus that Roe v Wade is larded
with historical bunk. Even former Justice Ruth Bader Ginsberg, Antonin Scalia’s
antagonist on the Supreme Court, thought Roe
was poorly argued.
In a piece on abortion enticingly titled The
Corruption of History, Senior Editor of National Review Ramesh Ponnuru has this to say about Roe v Wade’s
slipshod scholarship:
“To a greater extent than even most of its opponents
realize, the reign of Roe v. Wade has relied from the very
beginning on a false and sometimes fraudulent version of history. Justice Harry
Blackmun’s majority opinion repeatedly cited slipshod scholarship that was
already in the process of being discredited in 1973 and has since been
comprehensively debunked. The Supreme Court has, however, never revisited its
mistaken historical claims, which have instead taken on a life of their own in
academic work, popular journalism, and legal briefs.”
Justice Blackmun relied heavily on the notion, circulated widely
during the 1960s, that “abortion had been a common-law liberty at the time of
the American founding and for many decades thereafter, and that when states
outlawed abortion in the mid-19th century they did so out of concern for its
dangerousness to mothers rather than to protect unborn lives.”
That notion, propounded by abortion activist Cyril Means Jr.,
flies in the face of material fact and easily obtained historical
documentation. One of the junior members of the Roe team, Ponnuru tells us, “observed in a memo that Means’s
conclusions sometimes ‘strain credibility’ and that he was willing to ‘fudge it
as necessary.’”
The fanciful documentation supporting Roe was, to put it
bluntly, historically subversive, and it has produced an unreliable historical
mythology.
“Blackmun,” Ponnuru writes, “cited Means in six of Roe’s
footnotes, using the activist’s historical inventions as his principal evidence
that abortion may have been allowed at the time of the Founding and that later
restrictions may not have been designed to protect unborn lives. These were
building blocks of Blackmun’s argument that unborn children did not qualify for
the protections of the 14th Amendment as ‘persons,’ that abortion itself was a
liberty rooted in American tradition, and that laws to protect unborn children
are unconstitutional.”
These propositions are not merely doubtful – they are untrue.
Over the weekend, a first draft “decision” by the Supreme
Court had been leaked to Politico, and the unadjusted
decision – first draft decisions by the Court are usually amended over a period
of months before a decision is published – has excited pro-abortion advocates
and a media that in the past has not been willing to acknowledge decisive objections
to Roe, even when they are voiced by
progressive jurists such as Ginsberg.
“The draft opinion,” Politico reported, “is a full-throated,
unflinching repudiation of the 1973 decision which guaranteed federal
constitutional protections of abortion rights and a subsequent 1992 decision
– Planned Parenthood v. Casey – that largely maintained the
right. ‘Roe was egregiously wrong from the start,’ Alito writes.
“’We hold that Roe and Casey must
be overruled,’ he writes in the document, labeled as the ‘Opinion of the
Court.’ ‘It is time to heed the Constitution and return the issue of abortion
to the people’s elected representatives.’”
If the Court is able to maintain its equipoise against the
coming tsunami of anticipated left-field assaults, only a few of which will
address the Court’s legitimate juridical concerns, and its first draft decision
is permitted to stand, abortion in the United States will not be rendered
illegal. The decision-making power on abortion matters will be returned to the
states and invested in state legislatures. The court is here striking down a
prior decision. To put it plainly, the Supreme Court is righting a wrong
decision. Despite all the media frothing, the Court has not aimed a fatal blow
against the practice of abortion.
Because the Court’s draft decision has been untimely issued,
no doubt by a grudge-keeper who profoundly disagrees with the thrust of the decision,
the court will be disagreeably jostled until its final decision is made – one hopes
sooner rather than later.
In the meantime, it seems only fair to allow the Supreme
Court to be the Supreme Court. If the Court does adjust a decision it has deemed
deeply defective, it will not be the first time the Court has swallowed crow.
The Dred
Scott v. John F.A. Sandford
decision was not the Court’s finest hour. It is now generally agreed that “Chief Justice Roger
Brooke Taney’s opinion for the Court was arguably the worst he ever wrote. He
ignored precedent, distorted history, imposed a rigid rather than a flexible
construction on the Constitution, ignored specific grants of power in the
Constitution, and tortured meanings out of other, more-obscure clauses.”
Perhaps we can all agree that it should not take a Civil War
to correct Supreme Court decisions, and it is by no means inappropriate that the
Court should be allowed to correct prior imprudent rulings.
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