Abortion and Judicial Review: A brief of the issues
I. …..Introduction/Judicial Review
II. …..The Role of Feminism
III. …..The Role of Religion
IV. …..The Role of the States
V. …..The Role of Men
But it has been well said that legal education sharpens a person’s mind by narrowing it, and in the battle of opposing counsel, each of whom seeks to deduce an opposite conclusion from the same premise, a good judge must at every moment be willing to call a halt and say to the advocate: ‘Your argument is perfectly logical, but the result for which you contend seems to me absurd.’ William H. Rehnquist, The Supreme Court, 99 (2001).
The American criminal justice system, it is a decidedly adversarial one. In the quest for fair procedural and substantive due process, both sides constantly push and pull, one against the other; the right to contract and of free market principles vs governmental regulation for the welfare of the people; the rights of the individual vs the need for a well-ordered society; the rights of the victim vs the rights of those who are accused. In the case of abortion, the rights of the unborn vs the rights of the woman to bodily autonomy.
But the American system is one that guarantees protection to the minority from the tyranny of the majority. And to the accused- no matter how heinous the crime nor immediately overwhelming the evidence of guilt- it guarantees Due Process of law, even against the mob that riots, the angry crowd that marches on the steps of the courthouse or the lynch mob that lies in wait demanding immediate justice and retribution for the wrong done.
Decidedly, the Framers of the Constitution and millions who have flocked to the shores of America since Colonial days have come to her shores seeking refuge from oppression from all around the world. And the Constitution expresses the view that “congress shall make no law” regarding the establishment of religion or “prohibiting the free exercise thereof.” U.S. Const. amend. I This oppression, which the laws and ways of the American system of government have guarded against since the beginning of its foundations, is the very oppression that those who originally came to the shores of America were fleeing from. See, eg., Religion and the Founding of the American Republic Part 1 https://www.loc.gov/exhibits/religion/rel01.html ; Religion and the Founding of the American Republic, Part 2 https://www.loc.gov/exhibits/religion/rel01-2.html
So dear is the freedom of the individual against unnecessary governmental restraint and intrusion, so dear the freedom of conscience that it is embedded deeply and dearly into the very Constitution itself as a fundamental right, that the government may never take from its people lest it shows a compelling and legitimate reason for doing so.
Neither a direct democracy nor adhering to unlimited freedom that is the purview of anarchy and lawlessness, American judges have since the earliest days been given the power of judicial review to rule solely upon the issues of law, deciding in a fair and impartial manner, according to the spirit and values of the Constitution whether or not legislation impinges unnecessarily upon the Constitutional rights of the citizen. As such, the appellate courts in America have long been held to be the last bastions of freedom, a final buffer that stands between the citizen and unjust and oppressive legislation and abusive executive actions. See, eg., Marbury vs Madison 5 U.S. (1 Cranch) 137 (1803). (Defining judicial review in a case that has never been overturned since). “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule…if an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect?” Id., at 177.
This concept of judicial review has also served as a model for other developed countries around the world: the basic concept of judicial review being that the judicial branch of government exists to address the grievances of the citizens as a means of keeping a “check” on the executive and legislative branches of government.
II. The Role of Feminism
But beyond any one individual or group of individual’s personal philosophical or religious convictions about the meaning or the origins of life is the very real and justifiable fear in the hearts and minds of the citizenry- even if never realized beyond the subconscious level- that too liberal and permissive laws or lax social attitudes surrounding abortion or contraception would lead to women being too free and promiscuous as regards to how they express or conduct themselves sexually, thus leading ultimately to the destruction of the two-parent nuclear family and the natural ordering of society such as can be seen in today’s times. It could undoubtedly be said that abortion is the by-product- as well as the enabler- of feminism itself, giving women more “choice” in childbearing beyond mere contraception (especially if that contraception should fail) in order to compete on equal footing with men- who do not become pregnant (thus making the sexes “equal”).
Because motherhood has a dramatic impact on a woman’s educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life…A State’s restrictions on a woman’s right to terminate her pregnancy also implicate constitutional guarantees of gender equality. State restrictions on abortion compel women to continue pregnancies they otherwise might terminate. By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption- that women can simply be forced to accept the ‘natural’ status and incidents of motherhood- appears to rest upon a conception of women’s role that has triggered the protection of the Equal Protection Clause…The joint opinion recognizes that these assumptions about women’s place in society; are no longer consistent with our understanding of the family, the individual, or the Constitution…Planned Parenthood of Southeastern Pa. V. Casey. 505 U.S., at 928-929. (1992).
The societal costs of overruling Roe at this late date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women. Id., at 913.
Most assuredly, such fears as previously described can be seen in the viewpoints of those who espouse the view that they are “pro-life with exceptions;” with these exceptions usually being defined as allowing abortions in the cases where the mother’s life or health is in jeopardy, there is some deformity that the child might be born with, or abortions being allowed where the pregnancy is a result of either rape or incest. In other words, the availability of an abortion within any given circumstance should be entirely dependent upon the woman’s “good” sexual behavior.
But surely the unborn is just as innocent, whether it is conceived via consensual sexual intercourse or whether conception occurs as a byproduct of rape. Once again, no full and thorough analysis of the abortion issue could ever be complete without striking right at the very heart of feminism. To be sure, feminism in the present times is a moot issue for society. That is, the lives of all but those who insist on living on the “fringe” edges of society are ordered around the very concepts and ideals of feminism- even if they do not consciously acknowledge it as such. So pervasive has the influence of feminism been in society that people do not even realize that it is feminist ideals that they order their lives around. Up to the highest courts in this nation has feminism been upheld. In an emotionally charged and scathing diatribe against then Chief Justice Rehnquist’s “views on women” Justice Blackmun holds to an argument that few who haven’t been living in a cave since the time of JFK would only be all too familiar with:
At long last, THE CHIEF JUSTICE and those who have joined him admit it. Gone are the contentions that the issue need not be (or has not been) considered. There, on the first page, for all to see, is what was expected: ‘We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases…If there is much reason to applaud the advances made by the joint opinion today, there is far more to fear from THE CHIEF JUSTICE’S opinion. THE CHIEF JUSTICE’S criticism of Roe follows from his stunted conception of individual liberty. While recognizing that the Due Process Clause protects more than simple physical liberty, he then goes on to construe this Court’s personal liberty cases as establishing only a laundry list of particular rights, rather than a principled account of how these particular rights are grounded in a more general right of privacy…This constricted view is reinforced by THE CHIEF JUSTICE’S exclusive reliance on tradition as a source of fundamental rights. He argues that the record in favor of a right to abortion is no stronger than the record in Michael H. v. Gerald D…where the plurality found no fundamental right to visitation privileges by an adulterous father, or in Bowers v. Hardwick…where the Court found no fundamental right to engage in homosexual sodomy…In THE CHIEF JUSTICE’S world, a woman considering whether to terminate a pregnancy is entitled to no more protection than adulterers, murderers, and so-called sexual deviates. Given THE CHIEF JUSTICE’S exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts… …In short, THE CHIEF JUSTICE’S view of the State’s compelling interest in maternal health has less to do with health than it does with compelling women to be maternal… …Even if it is somehow ‘irrational’ for a State to require a woman to risk her life for her child, what protection is offered for women who become pregnant through rape or incest? Is there anything arbitrary or capricious about a State’s prohibiting the sins of the father from being visited upon his offspring? … …But, we are reassured, there is always the protection of the democratic process. While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman’s right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box… Id., at 941-944.
To be sure, there is not one- even in the highest Court- that has not implicated feminism into the very heart of the discussion of abortion. But judges are there to rule on the issues of law, free from emotion. They must consider the cost to society as a whole whenever they choose to either uphold or overrule laws created by legislative bodies. As Justice O’Connor said in Casey, supra, “The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment.” Id., at 849.
If modern lives have been ordered around the very concepts of feminism- and legalized abortions have thus facilitated women’s exercise of “choice” in how they order their lives to be able to stand on equal footing politically, economically and socially with men- then the societal costs of outlawing abortion must also be weighed in the exercise of reasoned- not emotional- judgment. The issue of abortion can thus never truly be reached by legislative bodies without engaging in legislation meant to further the religious convictions of a group of individuals -even if- especially if- that group indeed be in the majority- in violation of the spirit of the First Amendment of the Constitution unless the very essence of feminism and the concept of “gender equality” and sameness of the sexes also be reached.
Indeed, how can any rational and reasonable court of law or legislative body strike down women’s right to abortion in the early stages free from undue burden or coercion by the State in a world in which neither common, statute nor case law gives any due regard to the peculiarities or needs of her sex? The world in which those such as the Republicans and those in the “pro-life” camp would have us return to looks more like that seen in some third-world country, where women have no protected right to abortion- at any stage during pregnancy- and the church is in bed with the government. Also, it should never be misunderstood nor misconstrued that the very earliest abortion statutes were always about both protecting the potentiality of human life in the way of protecting the unborn and protecting women in the process, thus the woman herself who had procured, or attempted to procure, an abortion was never herself indicted or brought up on any criminal charge.
This flies in sharp contrast to the laws that the Republican elected officials of our own times today would have passed; laws which would go so far as to charge a pregnant woman for manslaughter in some circumstances even in the case of spontaneous abortions (miscarriages) and impose absolutely no penalty nor obligation upon fathers. See eg., Amid new talk of criminalizing abortion, research shows the dangers of making it illegal for women https://www.washingtonpost.com/news/to-your-health/wp/2018/04/05/amid-new-talk-of-criminalizing-abortion-research-shows-dangers-for-women/?noredirect=on&utm_term=.c32397ad2812 ; Coverture and the Criminalization of Pregnancy https://whatswrongwithequalrights.wordpress.com/2014/04/29/coverture-and-the-criminalization-of-pregnancy/
This again flies in sharp contrast to the ways of a well-ordered and functioning society that holds that fathers cannot evade responsibility for the protection and support of both women and children.
Indeed, a woman and the way that she is made could indeed be termed “precious” for she alone has the ability to carry life inside of her. No male can do such a thing. But, again, the State would restrict her right to abortion even when it offers to her no protection should she choose childbirth over abortion the way the Republicans and the “pro-life” camp would do anything in order to coerce her to.
But once she gives birth, that preciousness is over. The only “life” of any concern is that of the unborn, which, even the dissenting justices in Roe agree have never been given any protection in our Constitution or legal system; the only legal or Constitutional status that a fetus has ever had has been solely contingent upon live birth….
The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment …The Constitution does not define ‘person’ in so many words. Section 1 of the Fourteenth Amendment contains three references to ‘person.’ The first, in defining ‘citizens,’ speaks of ‘persons born or naturalized in the United States.’ The word also appears both in the Due Process Clause and in the Equal Protection Clause. ‘Person’ is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators..; in the Apportionment Clause..; in the Migration and Importation provision..; in the Emolument Clause..; in the Electors provisions…But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application… All this, together with our observation…that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn. Roe v. Wade. 410 U.S., at 156-158 (1973). (Justice Blackmun, delivering the opinion of the Court. Citations and footnotes omitted).
Neither her child’s legitimacy, nor her marital status, nor the preciousness of motherhood can protect a woman that gives birth to a child today, for she is neither entitled to a presumption of child custody in her favor as her child’s caretaker (assuming in our world she can even claim to be such, so disordered is society) nor the guarantee that society expects a man to support his wife so that she can fulfill her unique and nature-given role as her children’s nurturer and caretaker. Likewise, in the modern era, to compel motherhood upon women who are not trained for its responsibilities but rather are trained to act and be as men. What societal consequences would such a thing reap? Furthermore, will the State likewise compel childbirth upon its females as the nation also expects them to shed their blood on the battlefield? The State in the former and the Federal government in the latter would both punish women with stringent gender-neutral legislation while also coercing- indeed, forcing- her to choose childbirth over abortion. Can such a society indeed ever call itself “civilized.?”
As is the case with homosexuality, can a case be made against abortion without bringing in one’s own personal religious and philosophical beliefs about the origins of life or without striking down the very tenets of feminism and concept of “gender equality?” Its roots go far deeper than women’s lib, having roots as far back as the suffrage. Is society prepared to challenge this?
III: The Role of Religion
First, it is clear that, in order to be legitimate, the State’s interest must be secular; consistent with the First Amendment the State may not promote a theological or sectarian interest…Moreover, as discussed above, the state interest in potential human life is not an interest in loco parentis, for the fetus is not a person. Identifying the State’s interest- which the States rarely articulate with any precision- makes clear that the interest in protecting potential life is not grounded in the Constitution. It is, instead, an indirect interest supported by both humanitarian and pragmatic concerns. Many of our citizens believe that any abortion reflects an unacceptable disrespect for potential human life…The State may also have a broader interest in expanding the population…believing society would benefit from the services of additional productive citizens- or that the potential human lives might include the occasional Mozart or Curie. These are the kinds of concerns that comprise the State’s interest in potential human life. Casey, supra., at 915-916.
There is a continuum as regards lines of beliefs and the standards that the Supreme Court has used (and also applies to the states) as regards just how far the government may meddle in religion. See, eg., Lynch v. Donnelly 465 U.S. 668 (1984); Lee v. Weisman 505 U.S. 577 (1992); Lemon v. Kurtzman 403 U.S. 602 (1971); Perry v. Van Orden 545 U.S. 677 (2005) …
At some points in United States history the Supreme Court and lower courts have taken the view that the government may accommodate religion, so long as it is done in a neutral way that does not promote one religion over the other. At other points in United States history the courts have taken the view that the government must remain entirely separated from religion, taking what is called the “separationist view.” See, eg., The Establishment Clause https://chancellor.maricopa.edu/sites/chancellor/files/Factsheet_Establishment.pdf In either case, to see whether governmental actions or legislation are consistent with the First Amendment to the Constitution, the government may not endorse any one particular religion (nor base its laws according to any one particular religion), nor may it compel the religious beliefs of one sect upon another. See, eg., McCreary County, Kentucky, v. ACLU 545 U.S. 844 (2005) (where two separate Kentucky counties posted up the Ten Commandments and cited that the Commandments were ‘the precedent legal code upon which the civil and criminal codes of Kentucky are founded.”)
To be sure, those who originally came over to this country and established the colonies were from predominately (Christian) European countries. Nonetheless, many of these same colonists flocked to the shores of America seeking religious freedom. The first Amendment (which has been fully incorporated as applying to the states) demands that Congress shall “make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” U.S. Const. amend. I Individuals are free to worship and believe as they choose, but that does not mean that any one religion or group of individuals may impose their beliefs, based upon their religion, into the laws of this land. Such a thing is specifically prohibited to protect the freedom and liberty of the people.
If rights are to be restricted, it must be for a wholly secular purpose that serves a legitimate and compelling societal/governmental interest. And to be sure, no freedom is so dear that it cannot be curtailed when the demands of any given situation or the needs of society demand that it be. Can restrictions on abortion find a secular purpose, or a purpose that does not revolve solely around one group of individual’s beliefs about the origins or beginnings of life? Assuredly, they can. If society has become so disordered, and family life so shattered as to severely disturb the functioning and well-being of society, then the curtailing of abortions to serve the interests of the state in promoting sexual-law and order (presumably by means of attempting to curtail promiscuity) and stable families could certainly be legitimate. In times of war, invasion, or civil unrest, even the most precious First Amendment rights and rights to Due Process under the Fifth and Fourteenth Amendments may be abridged as the circumstances may demand it. See, eg., A Clear and Present Danger http://www.crf-usa.org/america-responds-to-terrorism/a-clear-and-present-danger.html ; The First Amendment: A Wartime Casualty? http://www.newseuminstitute.org/2002/02/15/the-first-amendment-a-wartime-casualty/
If civilization has been so shattered that nobody is raising the children and they have become a burden upon the state and tax payers and the courts are overwhelmed, rape cases cannot be taken seriously and society and the family simply cease to function effectively, assuredly individual rights to sexual expression can be curtailed to serve the State’s interest in preserving law and order and setting to rights the state of marriage and the nation’s family to further the State’s interest in promoting the integrity of male-female interactions and relationships and to further the State’s interest in ensuring the welfare of the minor children within their respective jurisdictions- in which the regulation of human sexuality via the means of regulating abortion serve to further such legitimate and wholly secular interests. There is no freedom that cannot be curtailed whenever it comes at too high of a social cost.
There is also the State’s legitimate interest in the preservation of the potentiality of human life. To dispel the myths, in the outcome of absolutely no case has the life of the unborn not been considered. For various reasons that can be entirely secular in origin, the State always has an interest in preserving and protecting human life- whether born or unborn. However, life cannot be defined, and likewise abortions restricted, based upon religious or philosophical beliefs about when life begins. Nobody has an answer to such a question and since the beginning of time societies have dealt with the issue of abortion and the defining of when life begins in countless different ways. Court cases attempt to reconcile the rights of women to bodily autonomy and integrity with the rights of the unborn. Roe did this by laying out a trimester framework, Casey and other cases by laying out “undue burden” standards and defining the line more or less at “viability.” Again, when life begins is wholly dependent upon individual belief, an intensely personal undertaking of which no two parties will ever completely agree. To each individual is the right to believe and decide for themselves as regards the existence (or lack thereof) of a god, and the mysteries of life and origins of the universe. For any subject that can be named, individuals will disagree. Nobody can make nor coerce individuals to agree lest individuals be ruled by means of a dictatorship and the rights to freedom of conscience, association and personal belief be curtailed and punished. Some believe life starts at conception, some when a heartbeat is detected, some when the fetus can survive outside on its own outside of the womb, and some only when a live birth actually occurs. Accordingly, no two religions (even of the monotheistic religions) can agree either. Religious beliefs regarding abortion and when life begins also change over time.
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in human uterus…The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother of that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly. Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolved 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 should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live’ birth…Roe, supra., at 159-160
Judges are to sit in reasoned judgment to rule on the issues of law, taking into account both the immediate and long-term consequences of their decisions and the cost that will ultimately be borne by society as a result of those decisions.
But “reasoned judgment” does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere ‘potentiality of human life…’The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its ‘balancing’ is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so…” Casey, supra., at 982
Judges do not make laws, but they do strike them down as unconstitutional. That doesn’t mean that public opinion cannot or should not be taken into account, but it does mean that judges cannot be influenced by unreasonable emotions or the ever-changing tides of public opinion. For every issue to which emotions run high, the people have marched upon the steps of the Supreme Court; they have rioted and peacefully protested in the streets; they have petitioned their government and rallied together for their common cause with others of like belief. And this is their right. But the courts, as the last bastions of freedom, must protect that freedom; must protect the spirit of the Constitution lest it become meaningless for all. The emotions or personal beliefs of any one group cannot rule society. Even if a group is in the majority, certain boundary lines cannot be crossed. Where abortion is concerned, some believe so emphatically that it is murder that they engage in their own holy wars against it by committing acts of terror, harassing women that visit clinics and by becoming belligerently outraged over the mere mentioning of the subject. It is what it is. The State must have a legitimate reason for restricting abortion and likewise take into account the needs of women and children post-natally if abortion is to be curtailed. Pro-life groups never come that far in their way of thinking, which is why they cannot be allowed to write the laws or impose their will upon the courts.
One of the many marks of genius that our Constitution bears is the fine balance struck in the establishment of the judicial branch, avoiding subservience to the supposedly more vigorous legislative and executive branches on the one hand, and avoiding total institutional isolation from public opinion on the other. The performance of the judicial branch of the United States government…has shown it to be remarkably independent of the other coordinate branches of that government… …We want our federal courts, and particularly the Supreme Court, to be independent of popular opinion when deciding the particular cases or controversies that come before them. The provision for tenure during good behavior and the prohibition against diminution of compensation have proved more than adequate to secure that sort of independence. The result is that judges are responsible to no electorate or constituency. But the manifold provisions of the Constitution with which judges must deal are by no means crystal-clear in their import, and reasonable minds may differ as to which interpretation is proper… William H. Rehnquist, The Supreme Court, 209, 210 (2001)
There has never been a general consensus in any society for when life begins that has held steady across different groups of people nor geographical boundaries nor will there ever be. Nor can it truly be legitimately considered the place of the average layperson to stand in judgment of the hypothetical future emotional or psychological state of women who choose to undergo abortions. Women’s sexuality and debates surrounding abortion have plagued every society in the same way religion always has and there is no reason to believe that the fate of humanity in this regard will ever be changed. When life begins is a debate that was here yesterday, is still present today, and will remain with humanity yet even tomorrow and for the rest of time lest it truly be that science will ever have a definitive answer for what mankind has only but speculated about since the beginning of time.
IV. The Role of the States
Regulation of abortion is the province of the states, except where Congress has seen fit to try to regulate in by means of its Commerce Clause powers. See, eg., The High Court Upholds the Federal Partial Birth Abortion Ban Act http://www.pewforum.org/2007/06/06/the-high-court-upholds-the-federal-partial-birth-abortion-ban-act/ See also Justice Ginsburg’s dissenting opinion in Gonzales v. Carhart 550 U.S._ (2007)
Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health. I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices. Id.
The courts do not make the laws, but they do, rather, strike down legislation when it is deemed to be in violation with the Constitution. If an appellate court decides to hear a case, it then examines the merits of the petitioner’s claim, finding if there has been any violation of the Constitution of the relevant jurisdiction involved. In the issue and controversy surrounding abortion, the judiciary has been careful not to define a precise time-point at which life begins.
It is also imperative to note how much power has been granted to the federal government in areas of personal and family matters that used to be deemed as local concerns that the federal government had no jurisdiction over. Alarming enough that more and more society gives no regard to the peculiar needs and circumstances of females and passes legislation that gives no regard or preference to the life and health of females that would have never been upheld even in more conservative and family-oriented times. What, precisely, does this say of our society then and of the Republicans and special-interest groups who have wielded their influence over the legislatures and courts of this land?
To be sure, special interest groups have proposed amendments to the Constitution defining life as beginning at conception, but no such amendment has ever made it into the Constitution. Surely, either an Amendment defining life as beginning at conception would be just as dangerous as an amendment or act of the legislature granting an undeniable right to abortion on demand. Neither position takes into account the complexities of life or the special needs and circumstances of human beings nor the current state of society and the family. No judicial body or act of the legislature has ever given to any woman the right to “abortion on demand” as some like to claim. See Casey, supra, at 887. “Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand…Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State… (Id., at 887. Citations omitted). And even dissenting Conservative justices have historically framed the issue by 1) looking at tradition to find attitudes on abortion when the Fourteenth Amendment was ratified and American’s historical attitudes on abortion. See, eg., Roe, supra., at 177 (Rehnquist, dissenting) and 2) by ruling on abortion by means of jurisdiction, if there is a Constitutional “right to privacy” or “due process” where abortion is concerned, and, if not, then states may regulate it as they wish, either by liberal or restrictive abortion laws.
Indeed, abortion would simply be an issue then left to the states if the Supreme Court were to rule that no fundamental right guaranteed by the United States Constitution is impinged upon when a State (or, as is increasingly the case, Congress) chooses to enact legislation limiting the right to abortion under whatever circumstances it chooses.
This is how it works: if the Federal government does not have the jurisdiction to regulate a field, then the jurisdiction falls to the states- and the states cannot be forced to criminalize behavior of any kind. The Constitution speaks in negatives, laying out rights the government may not infringe upon. It doesn’t lay out any right or benefit that the government owes to its people nor does it speak of any behavior that must be outlawed. Constitutions simply place limits that governments may not breach. Likewise, each state has its own Constitution and the states are free to grant even greater rights to their citizens than what the Federal government grants, and increasingly many states do just that.
National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement exited among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level…Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since…keeping us in the abortion-umpiring business…Casey, supra., at 995-996. (Scalia, dissenting).
Perhaps it would be remiss to believe that these decisions would be best left up to the states to decide. There is no way to determine such a thing for sure, of course, but perhaps if the federal government were to get out of such matters as family affairs, and intimate issues such as sexuality and abortion that were once considered local concerns for the states to govern, elected officials at the federal level could then focus on issues of significant national and international concern, instead of every presidential or midterm election being more akin to something that resembles a circus.
V. The Role of Men
“I hesitate not to assert that most of this crime of child murder, abortion, infanticide, lies at the door of the male sex…”- Matilda Joslyn Gage, 1868.
The very real and undeniable fact that abortion politics have split this entire nation in two, making Supreme Court appointments and presidential nominations almost entirely revolving around it should showcase loud and clear the importance of females and female sexuality to society; that nations have always placed such great emphasis on females and that all civilizations (if indeed they are civilized) are decidedly gynocentric. And absolutely no discussion revolving around females nor abortion could ever be complete without involving this nation’s men in it. Feminists have not always been wrong with their grievances, but they have largely been wrong in the results and conclusions that they reach and the policies that they advocate for.
Most assuredly, men have business here. There is no evidence to be found that men will not operate in the best interests of women and children when society calls upon them to be responsible and to lead. Embedded deep in this nation’s history and into this nation’s founding and embedded in the very common-law traditions of England and the colonies that held in various respects for nearly two centuries after the Constitution was ratified was the idea that husbands and fathers are to be providers for their wives and children, making the important ultimate decisions in the women and children’s best interests (as opposed to in the man’s own selfish interest) and seeing to their welfare. Firstly, that fathers must protect their daughters, especially from males that would take advantage, and that husbands are to protect their wives.
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything…The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, be is obliged to pay them: but for anything besides necessaries, he is not chargeable…If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together… These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favorite is the female sex of the laws of England. William Blackstone. Commentaries on the Laws of England. Vol. I, 442-445 (1765)
The Supreme Court has ruled that state laws requiring married women to notify or obtain the consent of their husbands prior to obtaining abortions, are unconstitutional. The very reasoning and logic behind finding such laws unconstitutional, again, strikes right at the heart of feminism in rejecting the aforementioned common-law views of marriage and women that “…are no longer consistent with our understanding of the family, the individual, or the Constitution…” Casey, supra., at 929. (Opinion of Blackmun, J.)
In keeping with our rejection of the common-law understanding of a woman’s role within the family, the Court held…that the Constitution does not permit a State to require a married woman to obtain her husband’s consent before undergoing an abortion… The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices…A State may not give to a man the kind of dominion over his wife that parents exercise over their children. Section 3209 embodies a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage…Women do not lose their constitutionally protected liberty when they marry. Id., at 897-898.
Surely if the law no longer imposes the common-law obligations upon husbands in marriage then neither would it be logical for it to grant to husbands the authority and dominion over wife and children that was also once to be found therein. With rights must come responsibility. Absent responsibility, there can be no justifiable rights.
Not only in our own traditions, but around the world as well men were called upon to be providers. Only in the quest to make the sexes equal and the same to one another and obliterate any social or legal distinctions between them have the true rights and welfare of women and children been cast aside in the name of “gender equality.”
‘The truth is, this is more a man’s issue than a woman’s issue…Men are called to be providers and protectors of women and children…We are calling for fathers to be fathers and take responsibility. If men were taking responsibility and standing with mothers then the majority of women would not feel like abortion is their only option…’ Outside A Clinic In Charlotte, 600 Protesters Claim Abortion Is ‘A Man’s Issue.’ https://www.huffingtonpost.com/entry/outside-a-clinic-in-charlotte-600-protestors-claim-abortion-is-a-mans-issue_us_593c1dffe4b0c5a35c9ffe69
Yes, fathers should more than have a say in the abortion process, but only when held to their rightful duties, and only the married father. But surely in the times today, where marriage is nearly socially and legally irrelevant and the law is blind to sex, mixing the duties and rights of males and females together and where most children are born outside of the state of marriage either to parents who cohabit, parents who are not together at all, or “parents” who are of the same sex it would be simply irrational, absurd and set downright dangerous legal precedent to grant to fathers, especially in the times of easy divorce on top of all the aforementioned social ills, a legal right to either veto or receive notice of the mother’s intention to have an abortion.
And if the married father is given this right, surely society would also hold him to the duties- only so recently forgotten about in our supposedly “enlightened” and “progressive” times- to nourish, protect and maintain the body and being of the woman that carries his seed within her womb? If he seeks rights over the womb, should he not also be responsible for it as well? If he has not such a duty and responsibility to the mother of his unborn, then why should he be granted a right over the unborn? He has only marginal (and not always fully enforced) shared responsibility with the mother after the child is born -not before- therefore it would be absurd and the worst of all transgressions to give him any right or say before birth.
Politics in modern times revolve around whatever the government can do or provide for the individual. If one group has a right, surely it would be sacrilege to deny that same right to another group then? Even when individuals are not similarly situated is it logical to treat them the same solely as a matter of principle whether or not there is a legitimate and justifiable reasoning for doing so that serves the best interests of society and all individuals involved? Personal responsibility goes right out the window, and surely the nation is divided now more than ever by the various groups and sects that separate themselves one from the other based upon status, political affiliation and belief, crying like immature children about being “discriminated” against or treated like “second-class citizens” because the law would dare take into account logical differences between groups of individuals (based on age, sex, marital status, legitimacy, wealth, position, etc…) in the pursuance of creating law and order.
But surely the government and administrative agencies regulate behavior now more than ever and impose obligations upon individuals and between parents who have made no choice to contract with each other or have duties the one to the other. Is that not too oppression of the worst kind?
In reaching out to find a due process issue in this case, the Court seems to have misapprehended the entire thrust of the State’s argument. When explaining at oral argument why Illinois does not recognize the unwed father, counsel for the State presented two basic justifications for the statutory definition of ‘parents’ here at issue…First, counsel noted that in the case of a married couple to whom a legitimate child is born, the two biological parents have already ‘signified their willingness to work together’ in caring for the child by entering into the marriage contract; it is manifestly reasonable, therefore, that both of them be recognized as legal parents with rights and responsibilities in connection with the child. There has been no legally cognizable signification of such willingness on the part of unwed parents, however, and ‘the male and female…may or may not be willing to work together towards the common end of childrearing.’ To provide legal recognition to both of them as ‘parents’ would often be ‘to create two conflicting parties competing for legal control of the child…’Stanley v. Illinois. 405 U.S. at 668. (1972). (dissenting opinion of Burger, C.J., and Blackmun, J.)
The discussion about men and abortion only rests on how any individual man “feels” about abortion, or that if women have a “right,” then men should have an “equal right” too, as if the government should hand down rights to individuals based upon emotion or sentiment, rather than reason and logic and it has become quite the fad in the modern era to decry about supposed “reverse discrimination.” Surely knocking down sex distinctions and pure unbridgeable “equal rights” between the sexes and a legal system that turns a blind eye to sex distinctions sets, once again, dangerous legal precedent that has led to the lawless times we have today where “every conscience is a law unto itself” Employment Division v. Smith 494 U.S., at 890 (1990). (Scalia, J. Delivering opinion of the Court).
It should not be an issue about men and women fighting to be “equal” where they are not equal in their unique roles in life, nor similarly situated in areas of major concern to society (such as childbearing ability, sexuality and physical strength and endurance). No discussion around men’s role in reproduction issues should focus on “equality,” but rather on men’s and women’s roles and responsibilities in life. To be sure, both sexes have always been able to pursue the path they wish in this life, but marriage, childbearing, family life and issues of sexuality are important and must be regulated in one way or another by the government. No time period- not even our own- can or has ever been able to escape such reality. The focus on men’s role in the abortion debates should focus on man’s role to provide for and protect women and children, which secures to a father the right to participate in the upbringing of his offspring as much as it protects a woman’s most precious right to bear, nurse, nurture and raise those offspring in a stable, secure and safe environment by means of her close relationship to, and ability to depend upon, the father for her support and protection. And no discussion of abortion can escape the inevitable topic of woman’s unique and undeniable role, in which every part of her being was so clearly designed for, in the nurturing and care-taking of her children.
Part VI: Conclusion
Perhaps in this there can never be any real and true conclusion, but perhaps what is prayed for here is no more than a mere consideration for the circumstances that face and burden the fairer sex and perhaps a reconsideration of the role of women and of her status as the weaker vessel in society. Perhaps it is still yet no more than the calling and yearnings of a woman’s heart as regards the preciousness of her sex and of her sexuality. So wondrously made, no matter which god one happens to believe in. It is perhaps no more than that hope in the heart of a woman that she be looked upon as she is made, as precious and weaker, yet of infinite value, by the men and lawmakers of this nation. Perhaps may the society and men of this nation find it within their own hearts once again to reconsider the error that was feminism and take it upon themselves once again that duty to provide for and protect their own and to be yet again the guardians of women.