Hey Hey, Ho Ho, Roe v. Wade Has Got To Go

I sparked a minor kerfuffle on my Facebook profile when I changed my status on the anniversary of Roe v. Wade to suggest the case should be overturned. Some agreed and some disagreed, and that's just fine. I posted my status in part to stimulate that debate but primarily to express my view that Roe is bad law based on flawed precedent and an inappropriate expansion of the Constitution. The events of the last few days have only underscored how harmful and frightening a precedent Roe is.

What Facebook people quickly moved into was the question of whether abortion is good or bad. While I am pro-life and believe abortion should be heavily restricted, the legality of abortion is really a question for another day. It is the established constitutionality of Roe that is so odious and the subject of this post.

First, I believe Roe is not the problem but a symptom of a larger problematic legal pattern. Justice Harry Blackmun's majority opinion in Roe owes a debt to previous cases where the Court began referring to a "right to privacy". Don't bother pulling out your Constitution to find those words because they aren't in there. Rather, Justice John Marshall Harlan dipped his toe in the pool when he wrote in his 1961 dissent in Poe v. Ullman that a Connecticut's law banning the sale of contraceptives was an "invasion of privacy".

When the Court reconsidered the same law in Griswold v. Connecticut a few years later, this time the Court struck it down. Justice William O. Douglas--FDR appointee and author of the Griswold decision--dove right in the pool and found something in the Constitution that the Founding Fathers forgot to include: a "right to privacy". What is a right to privacy? Your guess is as good as mine.

What's worse is how he unearthed this long-unknown constitutional nugget. In striking down the Connecticut law and discovering the "right to privacy", Justice Douglas wrote that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Huh? Not sure what "emanations" and "penumbras" are? I didn't know what penumbras were until my first year of law school. And I always thought emanations were associated with bad smells. Turns out that essentially penumbras are shadows, and emanations are emissions.

Confused yet? In other words, the Constitution doesn't really mean what it says because the specific rights detailed therein cast broad, general shadows that cover a panoply of other rights limited only by the imaginations of enterprising lawyers and legacy-seeking Justices. Put another way, many unspecified (and unknown) rights emit from the specific enumerated rights. Think of a family tree with the "privacy patriarch" at the top and scores of generational offspring.

Naturally, Justice Douglas' emanations and penumbras have elevated all manner of behavior to the status of constitutional "rights". Roe v. Wade is the most controversial example. But take Lawrence v. Texas, the 2003 Supreme Court decision that struck down a Texas law criminalizing sodomy and [surprise!] found that all adults have a constitutional right to engage in such activities. The people of Texas apparently believed there should be a law criminalizing sodomy between consenting adults...or at least should let their archaic and exceedingly rarely enforced law remain on the books. Personally, I think such a law is dumb. But that is worlds away from believing sodomy should be promoted to the level of a constitutional right. Our jurisprudence is now littered with decisions like Roe and Lawrence...and there are many more to come. Remember Prop. 8 in California?

Which brings us to two recent events. First, late Friday afternoon, Pres. Barack Obama signed an executive order reversing the Bush Administration's ban on giving federal money to international groups that perform abortions or provide abortion information. This has been a political hot potato for about 25 years so why the rush? Apparently Obama believes this issue to be of such importance that he couldn't wait any longer than his third day at work to take action on it. Can someone explain to me, if we are in the "worst economic crisis since the Great Depression", why is our President telling us he's going to send millions of our money overseas for abortions?

Second, House Speaker Nancy Pelosi (D-San Francisco, CA) declared in an interview on ABC Sunday that she supported spending millions on contraceptives as part of the economic stimulus package because it will "reduce costs" for state and local governments [tip of the hat to the Drudge Report for the story]. And who will be recipients of this aid? Well, logically, it would be poor and minorities who can't afford contraception. That doesn't sound very Democratic to me. Perhaps we should start calling Pres. Obama and Speaker Pelosi the Eugenicists in Chief.

The bottom line is this: Roe v. Wade is bad law, poorly decided and based on impermissible broadening of the Constitution beyond its language. It is also directly responsible for Obama's policy shift and Pelosi's bizarre economic analysis.

Either the Constitution means what it says, or it means nothing. Apparently we have chosen the latter. As a result, we can expect our President and his fellow Democrats to continue genuflecting to abortion rights groups, the ACLU and other leftist extremists. Griswold and Roe have massive penumbras.