Roe v. Wade: Further Proof (Part V)

The Court held the state of Texas’ abortion statute to its highest level of scrutiny to justify the need for the law in Roe (strict scrutiny). In the Court’s view Texas could not prove a “compelling state interest” (before viability) and therefore the law was invalidated. However, the Court set a simple “rational basis” standard to review the constitutionality of state laws less than two decades earlier. The Court made the following conclusion in Williamson v. Lee Optical (1954): “in a unanimous decision, the Court held that while the law may have been “needless” and “wasteful”, it was the duty of the legislature, not the courts, “to balance the advantages and disadvantages of the new requirement.” The Court emphasized that “the day is gone when this Court uses the Due process clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” This decision was written by Justice Douglas who would latter waffle over this precedent when he handed down the Griswold decision. In Griswold Douglas conjured up the “penumbras” theory to sidestep Williamson to strike down a state law using the Fourteenth Amendment while creating a new Fundamental Right to privacy at the same time. The penumbras theory stated that the right of privacy could be found throughout the Bill of Rights: no illegal searches and seizures and no quartering of troops for example. From this Douglas asserted the framers intended to protect all rights to privacy. That is a big jump when the framers could have simply guaranteed that right. The fact the framers protected some privacy rights but omitted others is very telling and was most likely purposeful. And of course, Douglas’s decision in Williamson did nothing to hold him to the standard he developed when deciding Roe v. Wade (that a state can regulate the abortion industry as it sees fit). I do not agree Williamson was properly decided, but it was precedent set forth by Justice Douglas and ignored by Justice Douglas in Griswold and Roe. Williamson has never been overruled and remains good law today despite the fact that Lens Crafters is doing what Lee Optical was denied. Some scholars would argue that the rational basis standard developed in Williamson did not apply to Roe v. Wade because abortion dealt with both a Fundamental Right (abortion) and the discrimination of a particular sex. Neither Fundamental Rights or discrimination components can exist to use a rational basis standard. However, Williamson denied a person the Fundamental Right to work a lawful profession. And prostitution laws target the female sex, but no is disputing they are not discriminatory even though women are penalized more than men. If Williamson fit a rational basis standard then so too did Roe, Griswold, or any State law for that reason. This is why Williamson was such a bad decision (not just because it was decided wrongly, but it essentially made the rational basis standard for all state laws – including over Fundamental Rights). But if stare decisis was truly practiced then the Court would have applied the same Williamson standard to Roe, Griswold, and Baird.

The Court used a rational basis standard when deciding cases about government funding for abortion and therefore found that state and federal restrictions on funding were Constitutional in cases such as Maher v. Roe (1977), Beal v. Doe (1977), Poelker v. Doe (1977) and McCrae v. Harris (1980). In essence, the Court held that Medicaid and other government sponsored healthcare was an entitlement and not a Fundamental Right recognized by the Fourteenth Amendment. Furthermore, no abortion rights were abridged since the laws did not place any obstacles in the way of having an abortion that were not already there. Of course, this caught the ire of the liberal Justices who thought the majority rejected “human terms” and proclaimed the majority opinion “condemned a woman to remain pregnant” and the majority is “imposing a moral viewpoint”. The dissent felt these decisions by the Court placed an “undue burden” on poor women seeking an abortion and it therefore violated their equal protection rights. After all, pro-abortion advocates argued that abortions cost the state less than an unwanted baby. The Court dissenters also argued the majority should use the same “compelling state interest” or even some intermediate scrutiny test created by the Court in Craig v. Boren (1976) to decide abortion funding. In Craig the Court held that when a law discriminates against one sex there must be an important government objective to do so. This was the mess created when the Court overstepped its bounds in Roe and created a Fundamental Right that simply does not exist.

The claims by the dissent in the previous paragraph can be refuted easily. In fact, one can make all the same argument to defend prostitution. Prostitution laws impose a moral viewpoint. Prostitution laws impose an “undue burden” on woman trying to make a living. Do prostitution laws consider the “human terms” of women trying to survive in America? Prostitution laws target mostly women and therefore violates the equal protection clause. Sure, states can make a convincing argument to support prostitution laws to protect a compelling state interest, but keep in mind prostitution is legal in most of Nevada. Could the Court choose to elevate the profession of prostitution as a Fundamental Right in that woman have the right to choose any profession as much as they have a right to choose abortion? Sure, why not! In fact, abortion laws work to protect the prostitution profession. As for the argument that abortion saves States money does not consider the extensive counseling and damaged mental state of more than half of all mothers who abort a child. This impact on mothers and families should not be underestimated. Nor should the statistic of higher divorce rates and single moms raising families needing federal assistance. Since abortion has been legalized the per capita cost of welfare has continue to go up despite the fact that abortions primarily affect poor African-American. African-Americans make up 41% of all abortions but only account for 13% of the population. From this information, it is obvious that abortions are readily available and affordable for the poor. Why aren’t people arguing that abortion violates the equal protection clause because it targets African-American disproportionately? This information supports the claim that abortion and feminism are both radical in that they target the genocide of the poor and African-Americans just as Margret Sanger (Founder Planned Parenthood) envisioned a century ago.

Abortion advocates incorrectly claim that Roe overturned Buck v. Bell (sterilization of undesirables). Since Roe gave women the right to choose, they asserted women have both the right to terminate or to have a child thus also protecting the right to have a baby which was denied in Buck v. Bell. The truth is that Buck v. Bell has never been officially overturned and the Fundamental Right of procreation was decided in Skinner v. Oklahoma (1942). Let’s face facts, Roe v. Wade was about abortion rights and nothing else. A woman would not be “condemned to remain pregnant” if Roe was about the right to procreate.

Many Court Cases such as Planned Parenthood v. Ashcroft and Thornburgh v. American College of Obstetrician and Gynecologists (1986) dealt with state regulations on abortions. Pro-abortion advocates saw these laws as a means to obstruct people from obtaining an abortion. I do not doubt that obstruction or discouragement may have been part of the anti-abortion movement motivation. That being said, most state laws merely “regulated abortion the same as any other potentially dangerous medical procedure.” The Courts voided many of the provisions of these regulatory laws, but remember Roe v. Wade was decide in part because of the “horrors” of illegal abortions. If this is true, they why would pro-abortion advocates object to tighter safeguards to “protect woman’s health and their bodies?” This is not only hypocritical, but it is further evidence that abortion advocates do not care about safety. Instead, they merely care that abortion is legal and easy to access.

Roe v. Wade: Further Proof (Part IV)

Those on the right believe the anti-abortion movement is about “fetal protection”, “religious rights”, and “life begins at conception” as outlined in the famous state cases such as Rosen v. Louisiana and Steinberg v. Brown (Ohio). The Left believes the pro-abortion movement is about a “Woman’s right to control her body outweighs the rights of an embryo” and that a “woman’s body belongs to the woman themselves” as outlined in famous state cases such as Doe v. Dalton (Georgia). These are valid arguments on both sides, but the argument really comes down to the precedent set in Griswold to “protect the privacy and intimacy of family life”. The conservative argument is based on religious and moral values and they are not listed in the Constitution (Life begins at conception). The liberal argument of having control over you own body is more compelling, but it is not absolute. Many bodily activities such as prostitution and doing drugs are crimes. And who speaks for the rights of the father or the fetus if a woman’s right is absolute? No one. Hence, there is nothing in the Constitution to stop states from regulating or prohibiting a bodily issue like abortion. Since there is nothing in the Constitution about privacy, marriage, contraception, abortion or other issues involving abortion only the Griswold precedent provides some hope to the pro-abortion movement. But the statement to “protect the privacy and intimacy of family life” is broad and vague and cannot protect illegal activities such as crimes including spousal abuse, rape, and incest. A pregnant woman smoking, drinking, or doing drugs in not a protected private act since it could injure the baby. If these actions are not protected private actions then why should an act that aborts a baby be a protected private action? And anyone can argue the act of an abortion is not a privacy issue. Doctors and nurses will know about the abortion and the hospital or clinic will have a record of the abortion. In fact, anyone who sees the patient at the clinic or hospital may be able to ascertain that an abortion has taken place especially given how the figure of the mother may change. And of course, anyone seeking government funding for an abortion would not constitute a private matter. So how do we determine which private actions are protected and which are not? This is a fairly easy task. Anything that is considered controversial such as crime is not protected and anything that is not controversial such as consensual sex is protected. Abortion is controversial and it is therefore something that should not be protected by privacy. What makes abortion controversial (other than it kills a life or fetus) is that married couples and partners have lots of choices such as contraception, sterilization, and adoption to prevent abortions. In essence, abortion is a means to correct a mistake. Hence, the argument that a “woman’s body belongs to themselves” is not a fair estimation when it comes to abortion. First, if a woman got pregnant and did not intend to do so then they made a huge mistake and their decisions over their body are questionable at best. Second, abortion is a surgery and therefore the woman having an abortion will have no control over their body during an operation. Third, if abortion is funded by charity, the government, spouse, partner, or a friend then does the woman really have control over her body if she cannot afford the surgery? Finally, it is very selfish for feminists to believe that the fetus, spouse, or partner have no rights over a pregnancy. The abortion movement is about feminists garnering more rights than men. Consider how the feminist movement tried to reduce the privileges provided to veterans (mostly men) for employment and medical coverage back in the seventies. Think about the irony: Feminists demanded more rights than the men who fought for their freedom so they can protest their selfish cause. This behavior has led to our political divide and the sense of entitlement people feel they deserve for doing nothing. This behavior is why we have political correctness and why everyone gets an award for participating (losing) in competitions. The abortion movement is about having someone else pay for their irresponsible and unaccountable behavior over their bodies, but at the same time claim it is a private issue.

I am for protecting the Fundamental Rights for all citizens equally (to the equal protection clause), but I am totally against providing a group of persons more Fundamental Rights than another group such as through diversity or abortion legislation. Fundamental Rights are not supposed to be controversial. Fundamental Rights do not conflict with other Fundamental Rights such as the right to marry (means making joint decisions), the right to procreate, or the right to happiness (abortion will not make a person happy unless they are really sick). The same arguments used to elevate abortion or a woman’s right to choose as a Fundamental Right would be no different than saying cosmetic surgery is a Fundamental Right so woman can show their personalities, avoid restraint living in a body they do not like, and it will help family issues. After all, doesn’t cosmetic surgery also have a death rate lower than childbirth and it discriminates against the poor who cannot afford it? These are all the same arguments used to abort a child. A Fundamental Right is deep-rooted in American history and tradition. Abortion fails to meet this condition because it was taboo and a crime under most state statutes.

Many liberal law scholars agree that Roe v. Wade was decided incorrectly. Ruth Bader Ginsberg, for instance, felt that the Court should have relied upon the “equal protection clause” instead of the “due process clause” of the Fourteenth Amendment. However, to say that anti-abortion laws are discriminatory against women is a tough argument to make. In Roe, the plaintiffs went out of their way to point out that pregnancy only happens to women and men should have no say in the outcome of any pregnancy. So how can a law that can only apply to women be discriminatory? That is like saying all laws are discriminatory because they only apply to criminals. Besides, both approaches (equal protection or due process) fail at realizing an important aspect of the pro-abortion movement: government funding for abortions. Federal funding for abortions and individual privacy are conflicting arguments. Moreover, no Fundamental Right is an entitlement created by the government (rights come before government). This is why healthcare is not a Fundamental Right. It is our Fundamental Right to own (buy or sell) property if we choose to do so. However, other Fundamental Rights cannot be bought or sold.

Roe v. Wade: Further Proof

I am in favor of “equal protection” for women to join the military and there should be absolutely no restrictions (no more than men) on them to face combat. I would like to see women work higher paying and more dangerous jobs such as roofing, construction, logging, and deep-sea fishing. For every all-male school which feminists force to be co-ed the same should be done to eliminate traditions at an all-female school. I saw a commercial recently for a product I cannot name, but paraphrasing the female athlete she said, “there are no genders in sports, just athletes”. This is not true! For just about any sport there are both male and female divisions. If feminist really want equal protection then why don’t they want to combine athletics into one classification? Once again, this is an area where feminists are completely happy having non-equal protection. In fact, dumb laws like Title IX take athletic opportunities away from males in both high school and college. You see, to feminists, equal protection is an equal number of male and female athletes at each school, not that women should compete against men. Women want to distinguish between men when it favors their agenda, not when it does not. Discrimination is fair when it favors women, but not vice-versa. They want it both and the Courts have complied yielding a double standard of non-equal protection rights for women on certain issues and not in others.

Linking both the birth control and abortion movements makes little sense. After all, if people practiced proper birth control then there would be no need for abortions. Birth control rights and sterilization options should make abortion needs illegal except under certain conditions. However, pro-abortion advocates link birth control (Griswold) to abortion (Roe) because some birth control methods are abortifacients. This may be true, but the Court decided in Hobby Lobby v. Burwell that a company did not have to pay for an employee’s abortifacients (but did pay for other types of contraception) in its healthcare plans. Here the Court distinguishes between certain types of birth control: those that prevent a pregnancy and those that destroy a pregnancy. So, once again, this argument has no legs. There is nothing to link Roe (abortion) to Griswold (Contraception).

When the issue of birth control first hit the Supreme Court in Poe v. Ullman the question of “privacy” was addressed. Although the Court decided there was no injury and dismissed the case the Court was not unanimous in that decision. In his dissent, John Marshall Harlan, suggested the issue of privacy existed not in a woman’s right for contraception, but in the right to privacy for both a man and a woman in marriage to decide what is best for them. When the issue appeared before the Supreme Court again in Griswold v. Connecticut (1965) the Court handed down it controversial decision. Many Justices worried about the impact the broad and ambiguous “right to privacy” may have on many issues including abortion. In the oral arguments for Griswold Justice Black asked, “Would your argument relating to privacy, invalidate all laws that punish people for bringing about abortions?” Griswold’s attorney (Emerson) responded “No, I think that it would not cover abortion laws; that conduct does not occur in the privacy of the home.” Justice White asked Emerson “I take it abortion involves killing a life, doesn’t it? Isn’t that rather a different problem from contraception?” Emerson conceded White’s point. Justice Black asked Emerson, “Are you saying that all abortions involve killing or murder?” Emerson replied, “Well, I don’t know whether you could characterize it that way, but it involves taking what has begun to be a life.” Justice Douglas in his majority opinion for Griswold cited both Meyer v. Nebraska and Pierce v. Society of Sisters which declare many Fundamental Rights, but privacy was not one of them. The decision in Meyer, does however claim, as Justice Harlan explained in Poe, marriage is a Fundamental Right. Griswold and the “right to privacy” was the main precedent used by the majority to find a right to abortion in Roe v. Wade. However, the right of privacy discussed in Griswold specifically does not include abortion and it does not include a “woman’s right for contraception” but the right of both a man and woman in marriage to make decisions for contraception. Roe v. Wade was not about a private decision between a married or dating couple, but a “woman’s right” to abortion with or without the consent of their partner. And there is nothing as I pointed out earlier linking abortion to contraception in Roe and Griswold respectively.

The opinions of Griswold and Roe and the autonomy of women’s rights at the expense of men’s rights show a direct correlation to the biggest spike in divorce rates, brutal custody battles, and single mothers. The divorce rate went from 10% pre-Griswold to 50% post-Griswold and that rate has remained fairly constant for the last 50 years. Feminism has produced a vicious cycle of events leading to a new feminist war: demanding more entitlements for single moms. It is, of course, no surprise that single women earn a majority of government handouts.

Roe v. Wade was interesting for other reasons as well. First, the plaintiffs suffered no injury or loss so as in Poe the Courts really did not have any jurisdiction in the case because there was nothing to be settled. Why would the Court accept jurisdiction over a case where there is no injury or damages to be collected or claimed? Secondly, the plaintiffs Jane Roe (Norma McCorvey) and Mary and John Doe (Marsha and David King) filed suit under fake names to protect their identity. If Abortion was a Fundamental Right there would be no reason to hide behind fake names. This proves abortion was taboo and controversial and not a right held in the same regard among all women or men like other Fundamental Rights.

The right to privacy and abortion were first linked in a case against J. Paul Shively who performed abortions on women who contracted rubella during their pregnancies and feared their children would be deformed. Shively’s attorney, Leavy, said, “It is a palpable invasion of the right of privacy guaranteed by the Due Process Clause of the Fourteenth Amendment for the state to inject itself into the sanctity of the marital relationship and dictate that the advice of the physician may not be followed.” Leavy correctly claims the issue is once again about the privacy between a “married” couple but he completely neglects the future arguments that Emerson would use in Roe that abortion itself is covered by the right to privacy. In Baird v. Eisenstadt (1972) the Court held that the Griswold ruling or a right to privacy extended to “unmarried persons” but it did not distinguish between men and women. This means that the decision of contraception was between two “unmarried” consenting adults. In a California case, Dr. Leon Belous was indicted for giving the name of an abortionist to one of his patients. The court held that Griswold did not apply because his patient was “unmarried”. The California Supreme Court overruled the case in a narrow 4-3 decision saying that the privacy rights between the girl and her doctor were more important than the state’s interest in a potential life. This decision obviously did not follow the logic of the Griswold opinion, but it may have set the precedent for the Court in Baird. But even Baird does not yield absolute power in the decision-making process over contraception to women alone.

Roe v. Wade: Further Proof (Part II)

I have read several books which claim to be “neutral” on the issue of abortion and that is far from the truth. In “Roe v. Wade: The Abortion Rights Controversy in American History” by N.E.H. Hull and Peter Charles Hofer they discuss one tragic (illegal) abortion story after another leading to the death of the mother. It is obvious the authors favored “therapeutic” abortion legislation that would give doctors more leeway to perform (legal) abortion under a wide range of conditions other than when the mother’s life being in danger. Some conditions include a poor mental state or the chance of deformed child. We are led to believe from Hull and Hofer that a women’s health suffered greatly due to abortion laws. It is odd though when Hull and Hofer point out states which implemented “therapeutic” abortion laws saw only a “slight uptick” in abortion rates. Hull and Hofer made this claim to show that implementing “therapeutic” abortion laws across the country would not have affected abortion rates too much. However, what this information tells me is that the tragic stories told in this book are rare and not nearly as widespread as they indicate. Besides, we all know that women’s health in America is much better than men’s health. How do we know this? Easy, because women live on average nearly five more years than men. And women have had a higher life expectancy than men throughout American history. Feminist would lead you to believe there is a war on women and women’s health. This is far from the truth. A far greater amount of money is spent on women’s health than men’s health in both government and charitable contributions. Consider, for example, how much money is raised for breast cancer, when far more men die from cancer than women. There is no war on women’s health when, in fact, there is a “non-equal” skew that greatly favors women. But feminist expect “non-equal protection” over the issue of healthcare and not equal protection.

It is a cop out for the pro-abortion movement to say a pregnancy places a “dispropriate burden” on women and it can be a “stigma” for unmarried women and it is a “disruption” of their lives (jobs etc.). Other pro-abortion arguments include pregnancy discriminates against the poor and it is safer than childbirth. Another extreme pro-abortion argument compares pregnancy to slavery saying it makes women slaves to their bodies. In fact, the Court’s reasoning in abortion cases seems to give credence to all these extreme arguments through reasonable statements such as: people have the right to be free from bodily restraint; people have the liberty to make decisions to marry and to have children; and people have the liberty to express one’s personality. For these reasons, the Court held the decision for an abortion was “the women’s and hers alone” and the spouse and even doctors had no say in the matter. Abortion, to feminists, was about freeing women from the oppression of pregnancy, something that no man has to go through. But in the early 1970s (time of the Roe v. Wade decision) there were things that only men went through that were much more troubling then an “unwanted” pregnancy. For instance, only young men were drafted into the military to fight in Vietnam. This could also be seen as slavery and a violation of the Thirteenth Amendment. This too could also be seen as a “dispropriate burden” and a “disruption” on their lives. The option for men drafted into the military was to fight or go to jail. Isn’t this a violation of their liberty to be free from restraint or the right to make family decisions or to express their personalities? Life in the military was much more dangerous than having an abortion or giving birth combined. Compared to the military argument, women have no argument. In fact, the women’s argument of comparing childrearing to an illness or disease once again illustrates the selfishness of the feminist and abortion movement.

Some believe Justice Thurgood Marshall’s questioning of the attorney defending (Floyd) the Texas statute in Roe was convincing because it poked holes in the Texas argument that life started at conception. Marshall asked if Texas felt that life started at conception then why didn’t the statute punish abortionists as murderers (the penalty was much less severe than murder). Marshall also asked why the Texas statute didn’t, as well as other state statutes, punish the mother for having an abortion. The Texas and most state statutes only sought to punish the abortionists. Floyd botched the answer which could have been simple. With regard to no penalty on the mother most criminal laws focus on the supply side of crimes and for good reason. Consider how laws are much harsher for drug dealers over drug users. This is obvious for a few reasons. First, drug dealers are making money off the criminal activity and preying on the weakness of addicted persons. Second, there are fewer suppliers to apprehend than users. Finally, by cutting off the supply of drugs then the demand is diminished. In many ways, we see kids dying from opioid addiction as victims and the same can be said of pregnant women. Abortion laws are no different, they focus on stopping the supply side of the activity. As for not punishing the abortionist proportionally to a murderer, this too is an easy question to answer. A murderer picks and targets its victims in a premeditated fashion. A drunk driver is usually convicted of manslaughter instead of murder because they did not intend to kill anyone. And abortionist does not seek out pregnant women (if they did, that may be murder). Pregnant women seek out abortionists and that is why penalties are less severe. There was no excuse for not being able to answer these questions correctly because this case was argued before the Court twice.

Another concern for the Justices in Roe is that anti-abortion laws drove desperate women into having dangerous illegal abortions. This too is a weak argument to legalize the activity. First, Hull and Hofer say that states with broader abortion laws did not see a big increase in abortions meaning these circumstances were rare. Secondly, the same analogy can be made for other crimes, such as drug laws. Don’t drug laws force users (victims) to buy from dangerous dealers or drug lords? Don’t prostitution laws force women to find protection from dangerous criminals? Don’t immigration laws force immigrants to find protection from dangerous criminals to earn passage to the United States. It is the nature of crime, it is dangerous. And since abortion at the time was a crime, it was a dangerous activity.

The Court invented a trimester system to compromise over the issue of abortion in Roe v. Wade (it is not in the Constitution; the Court was essentially legislating). In the first trimester, a woman could essentially get an abortion on demand. During the third trimester of a pregnancy the state could regulate abortion as it sees fit to protect the life of the fetus. The second trimester of the pregnancy could be regulated as the state sees fit (depending on when the state determines a fetus becomes viable): Before viability abortion was acceptable and after viability regulation and restrictions could be put in place. I have tried but cannot name a single Fundamental Right or action that is legal in its infancy but illegal in maturity. What can be treated as both cancer and a precious blessing? A fetus! It makes little sense that a common group of cells can act in two mutually exclusive ways that are polar opposites from each other. In its infancy mass genocide is welcome and in maturity nurturing and love are required.

Roe v. Wade: Further Proof (Part I)

I have written a great deal about Roe v. Wade, but I have found further evidence as to why it was a bad decision that I have yet to cover in any detail. First and foremost, the Fourteenth Amendment and the Ninth Amendment used by the majority’s Roe v. Wade opinion refers to “people” and does not distinguish between men and women. However, Roe v. Wade does distinguish between the sexes. The Constitution knows no genders, races, socio-economic status, or religions.

If Fundamental Rights come first and then government and laws follow, how can abortion be Fundamental? Laws do not make rights Fundamental, they already exist. Laws may protect Fundamental Rights, but they do not create them. Moreover, no Fundamental Right is controversial like abortion. Fundamental Rights are agreed to by all. Fundamental rights don’t have unlimited restrictions and regulations like abortion. Fundamental Rights are deep-rooted in American history and tradition. In a 1989 case before the Court it was argued that abortion was deep-rooted in American society since one-third of all pregnancies ended in abortion. Abortion was the most common elective surgery so it was argued it must be deep-rooted in American society. But all controversial issues are deep-rooted in American society and history however, for something to be an American tradition like marriage, to obtain knowledge, to procreate, and so forth it has to be 100% supported by the public. By this logic we can argue that cosmetic surgery is a Fundamental Rights because it has become deep-rooted in American society. There is only one Fundamental Right that causes as much chaos as abortion and that is gun ownership. But unlike abortion which has been taboo in American history, guns have been a deep-rooted tradition. Besides, the exact Fundamental Right is not gun ownership by itself, but gun ownership for self-defense. Everyone has a Fundamental Right to defend themselves and that is 100% agreed upon by all. Furthermore, if a state can routinely and legally intervene to regulate a supposed Fundamental Right, then there is no deep-rooted tradition of freedom.

In 2006, John Finn defined a political question as “The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political … then the court will refuse to hear that case. It will claim it doesn’t have jurisdiction. And it will leave the question to some other aspect of the political process to settle out.” Without question abortion was and is a political and not a judicial question and the Court should have addressed it as such. The Warren Court, however, ruled on political questions such as in Baker v. Carr the famous “One person, one vote” case. Cases like this may have opened the door for the Court to opine where it should not have. Another reason the Court should not have ruled on the case is because there was no controversy. Jane Roe was no longer pregnant and therefore the case was moot. There was not any “justifiable federal issue” at stake per the Constitution. Since Roe v. Wade was a political issue, the briefs for both sides of the argument consisted of very little law and a whole lot of Brandies Briefs covering “medical fact” about abortion and fetal development. This is proof Roe was not a judicial issue, but a political issue.

I had written in the past about how the early women’s rights movement for contraception and abortion was radical because feminists favored these policies mostly for population control. What’s worse, feminists also supported eugenics and the idea of ridding the world of “undesirable” people with “bad genes”. Radical feminist supported contraception, abortion, and even sterilization as a means to weed out the weak, diseased, criminal, the poor, deformed, mentally ill, and other so called “undesirable” persons. These original “feminist” or feminist supporters had something else in common: they were also socialists and or anarchists. In other words, their ideas were radical not just in support of the feminist movement, but also in economics and politics. Feminist classified most people as “undesirable” when in fact by today’s standard for morals and ethics they would be the “undesirables” in American culture.

The feminist movement was a double standard in that it demanded both “equal protection” from the Fourteenth Amendment and what I like to call “non-equal protection” or autonomy depending on the circumstances. I have written about many Supreme Court injustices towards women and minorities. Decisions such as Bradwell v. Illinois prohibited women from seeking a lawful profession and Mueller v. Oregon which placed workhour limits on women to push them out of the workforce. The Brandies Brief in Mueller was over one hundred pages and less than two discussed the law. The remaining pages referenced how women were inferior to men in all facets of life and therefore workhour restrictions on feeble women were a must. Since workhour restrictions did not apply to men, the outcome of the case was that employers would hire men over women. Equal protection under the Fourteenth Amendment was violated time and time again against women. Women and men should be treated as equals in all facets of life. Women should not be deprived working certain jobs and they should not be deprived of equal pay for doing the same job as men in the workforce. The present-day fight by feminists for equal pay should prevail.

All that being said, women will choose the “non-equal protection” route when it suits their radical goals such as eugenics less than a century ago. The fight for contraception and abortion in the last 50 years has been one of autonomy. Women want to deny men the right to decide with their partner or spouse the issue of contraception and or abortion. Over these subject’s women have greater rights than men and this violates “equal protection” for all. In Planned Parenthood v. Danforth (1976) the Court held that parental and spousal consent for abortion were unconstitutional. This is extremely surprising especially considering that youths did not have to gain consent. Youths in American history have limited First Amendment rights: there are age restrictions to vote, watch an R rated movie, join the military, drive a vehicle, marry, and drink alcohol to name few. It is hard to see how the issue of abortion does not meet these same age limits placed on many children’s rights. Besides, why wouldn’t the pro-abortion movement want a family to help a child make such a critical decision? Why leave it up to an immature person with limited exposure on the subject? As far as spousal notification the pro-abortion movement feared spousal abuse. I am sure there is a slight possibility of spousal abuse, but that can be settled if there is a police history of spousal abuse then spousal consent can be waived. The pro-abortion movement would argue that women may fear going to the police so there may be no record of spousal abuse. If that is true, then they would probably fear having an abortion more. I lived in a household of abuse and the police were routinely called to our residence by our neighbors. Thus, establishing a police record showing possible abusive behavior at a household is not an undue burden to waive spousal consent.

Dred Scott v. Sanford (Part VI)

Without Dred Scott the practice of slavery would have persisted and what’s worse Crittenden’s Amendments had a better chance of passing. This would have been more catastrophic then the bloodiest War in American history. Slavery is not mentioned in the Constitution, but the addition of Crittenden’s amendments would have added the word slavery to the Constitution 15 times officially legalizing the practice. Time would have erased slavery, but at what cost and how much longer would the practice survived? It is hard to say, but the Dred Scott decision definitely expedited the end to the evil that divided the Union from its inception. Without Dred Scott it is possible that slavery would have lasted long into the twentieth century. Most cases about race kept prejudice and discrimination alive and well for nearly one hundred years until Brown v. School Board (1954) ended Dred Scott and Plessy v. Ferguson (1896 – Separate but equal doctrine). Other cases such as the Slaughter House Cases (eliminating the privileges and immunities clause from the Fourteenth Amendment), Cruikshank v. United States (the Bill of Rights did not apply to the states who were free to discriminate), and the Civil Rights Cases (held the Civil Rights Act of 1866 and 1873 were unconstitutional) are examples of cases where racism and discrimination were upheld by the Court. The cost of freedom was high and sometimes that is forgotten. Today, we still talk about the evils of slavery and the Dred Scott decision (rightly so), but very rarely to talk about the bloody conflict that was needed to settle these issues once and for all. That being said, had slavery persisted in the South into the twentieth century who knows how big an impact of ending slavery would have had on our history and the loss of life.

The final major significance of the Dred Scott case was the effect it had on the Supreme Court during the Civil War. Lincoln violated many constitutional rights of the American Citizens to fight the Civil War. He suspended the Writ of Habeas Corpus and ignored Justice Taney’s decision in Ex Parte Merryman saying only Congress had the authority to do such an act (Taney was right). The administration also ignored Constitutional concerns from Taney about a 3% income tax to fund the war (Taney was right). Taney kept silent when Congress passed an Act to abolish slavery in the Territories reversing his Dred Scott decision. In essence, the Supreme Court lost a great deal of respect and power due to its Dred Scott ruling. Many thought that Lincoln should have pressured Taney to resign or retire and replace him with a Republican. Lincoln never considered these overtones and for good reason. He knew that such a move would violate the separation of powers and set a very bad precedent. Lincoln also understood that Taney and the Court were damaged goods and he could do what he needed (yes – violate the Constitution) to fight the Civil War. A weakened Supreme Court definitely helped the Northern and Republican effort in the Civil War.

Dred Scott v. Sanford (Part V)

In a normal constitutional reading one would interpret the Treaty or War power as how the United States may acquire new territory; the Territory clause as being the power in which the federal government would set up a government in a newly acquired territory; and the Statehood clause as being the power in which the federal government would admit a new state into the Union from the acquired territory. However, according to Taney’s view in his opinion the Statehood clause is the power in which the government would acquire territory, set up a territorial government, and finally admit a state into the union from the territory. There is no way this is possible. For starters, the Territory and Statehood clauses are in the same Article (IV) of the Constitution given equal weight. And there is nothing in the Constitution yielding the Statehood clause a higher hierarchical standing over Treaty or War power.

One major issue with the majority opinion is that they could not agree on a methodology for both its Negro citizenship and Missouri Compromise decisions. And, for this reason, there has been a historical debate over whether there were true majorities over these issues. For example, Taney (Justices Wayne and Grier concur with the entirety of Taney’s decision) mentions the due process clause but Justices Daniel, Campbell, and Catron make no mention of it. All majority justices believe slaves are considered property but Daniel and Campbell claim that slavery is some kind of super property protected extensively in the constitution (Migration and Fugitive clauses). Justice Catron argues the Missouri Compromise violates the Treaty with France for the Louisiana Purchase, but none of the other justices make any mention of this fact. The question of Territorial power over slavery is never decided by the majority: Justice Taney denies this whereas Justice Campbell says it is political question and not up to the judiciary to decide, and Justices Daniel and Catron make no mention of the issue.

Without question, it is easy to poke holes in any Taney or concurring Justice Arguments on either the point of free-Negro citizenship or the Constitutionality of the Missouri Compromise.

Significance and Consequences:

The significance and consequences of the Dred Scott opinion was not so much increasing the divide between Republicans and Democrats as much as the divide in the Democratic Party. Since the Taney decision for the Court was, at best, vague over the issue of Federal Government involvement in slavery in Territories it caused a fracture in the Democratic message. Northern Democrats and Southern Democrats have not always seen eye to eye over the issue of slavery, but the division got much bigger over the Territories question. The Southern Democrat view on slavery in Territories was 1. The Federal Government could not interfere with any citizen taking slave property into any territory; 2. The Federal Government should protect slaveholder’s property if territory protection is deficient; 3. Finally, only when a Territory is admitted into the Union as a State can it decide over the issue of being a free or slave state. The Northern Democrat view is that the Taney Court never resolved the issue of slavery in Territories. They believed that Territory governments could still decide the issue of slavery before statehood. Finally, they believed the Federal Government should not interfere over the protection of slavery in Territories. This fracture in the Democratic Party was significant and by the 1860 election they lost control of the Presidency and the House and they knew it was just a matter of time before they lost control of the Senate and Judiciary. This was a significant reason why Southern states succeeded from the Union and formed their own Nation. The issue over slavery in the Territories as well as Northern States ignoring the Fugitive Slave Act were key reasons for the Civil War.

The last ditch effort to save the Union were six amendments proposed by John Crittenden from Kentucky. The first was to extend the 36’ 30” parallel compromise all the way to the Pacific Ocean. Republicans refused to accept this measure. The other amendments were moot: Prohibit abolition of slavery in slave-states; prohibit abolition of slavery in the District of Columbia; prohibit federal interference over slave trade; Congress to provide compensation for refusal to return escaped slaves to its owner; and the last amendment was to protect the fugitive-slave clause and the three-fifths clause in the Constitution. When Crittenden’s measures failed secession and war were inevitable. Crittenden’s Amendment’s really were not that controversial or radical (they were truly a compromise) since they would have simply guaranteed what had already been accepted the first 75 years of United States history or since the Missouri Compromise (1820) over the issue of slavery. But Southern hypocrisy was too much for Northerners to accept. The first hypocrisy was to reinstate the Missouri Compromise 36’ 30” parallel which the Court said was unconstitutional in Dred Scott and secondly, and the Democrats hypocritical claim the Federal Government has no power over slavery in the Territories except to protect slaveholding. The Dred Scott decision was one of the final tipping points in the division of America and even the Democratic Party.