restoring our biblical and constitutional foundations


Abortion and the Judicial Imperium

Darrell Dow

The goal of any humanistic ruling class is to destroy all competing centers of legitimate authority. The social, political, and cultural elites that manipulate the political and cultural apparatus for their own enrichment and amusement have long seen fit to attack “renegade” sub-national political structures and whip them into line.

In the U.S., for well over a century, the judiciary has been the primary mechanism used to foster dynamic social revolution. Despite its alleged conservatism, an activist Supreme Court has been the primary instrument implementing and institutionalizing the Sexual Revolution in American life. This is particularly true with regard to contraception and abortion.

The genius of the original American Republic was the disbursement of power between branches of government and, more importantly, a system of dual sovereignty whereby the states were granted ultimate authority, ceding only certain clearly defined powers to the national government.

Naturally this system was under attack from the beginning. The Supreme Court established “judicial review” with the Marbury decision and wide-ranging questions as diverse as tariffs, internal improvements, and slavery ultimately led to the penultimate battle between nationalists (the Union) and supporters of states’ rights, represented by the Confederate States of America.

As the Civil War is not the subject of this essay, I won’t rehash the duplicity of Abraham Lincoln, suffice to say that the War Between the States represented the end of constitutional government envisioned by our Founders. Just as importantly, it represented the definitive victory of a New England commercial elite and put into place the machinery that would be used to further undermine the Constitution, and ultimately the family.

Aside from the 13th Amendment, which freed slaves from their bondage, the most significant constitutional change springing from the Civil War was the 14th Amendment, which has supplied the ammunition for a legal revolution. Originally designed to introduce procedural due process into state proceedings, the amendment says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

On its face, the language of the due process clause of the 14th Amendment says that a state must use sufficiently fair and legal processes when taking the life, liberty, or property of a citizen. As such, it extends 5th Amendment due process provisions to the various states. This intervention of the federal government into the affairs of the various states was problematic, and to a certain extent revolutionary. But much more was to come.

Through a series of decisions over several decades, the Supreme Court used the 14th Amendment to introduce “substantive due process” into the mix. Substantive due process, essentially, is the theory that the due process clauses of the 5th and 14th Amendments insure not only proper procedural safeguards, but that a person’s life, liberty and property may not be taken without sufficient justification as well.

This line of reasoning dramatically broadened the authority of the federal courts by exponentially expanding the power of federal judicial review of state laws. The Constitution was originally written to limit the powers of the central government and only a handful of restrictions were placed on states (Article 1, Section 10 and Article 6). However, through the creation of substantive rights, federal courts seized the power to overturn state laws in two ways. First, the Court invented the “Incorporation Doctrine,” whereby selected provisions of the Bill of Rights were applied to states under due process provisions. Secondly, the Court created the “Fundamental Rights” theory, whereby the Court would adopt whatever substantive rights it believed must be protected without any reliance on written provisions of the Constitution. The Court typically roots fundamental rights in the word “liberty” in the first clause of the 14th Amendment.

In short, the Court simply expropriated the authority to create law on a whim, and in the process overturn duly elected state officials and public sentiment without even citing constitutional authority to do so.

In a series of cases, the Court used the substantive due process doctrine to create a right to privacy and ultimately manipulated the “liberty” provision of the 14th Amendment to justify virtually unfettered access to abortion at any point during pregnancy. In the process of establishing the abortion regime, the Court ignored the “will of the people” as expressed through their representatives.

For instance, in 1910 forty-five states had anti-abortion provisions on the books and in Kentucky, the judiciary had acted to make abortion illegal, yet by 1973 the Court had enshrined legalized abortion as the de facto law of the land. How did this happen?

The sexual revolutionaries, led by Planned Parenthood, first focused on laws limiting the distribution and use of contraceptive devices. In 1965, the Court struck down a Connecticut statute (in Griswold v. Connecticut) that criminalized the use of drugs or devices to prevent conception. The 7-2 decision, authored by William O. Douglas, introduced the “penumbra” concept, which says that certain fundamental rights exist and must be enforced against federal and state authorities in spite of not being written directly into the Constitution. These supposed rights are found in the “gaps” of the enumerated rights.

For example, in the Griswold decision, Douglas found a marital privacy right that allegedly stretches across the 1st, 3rd, 4th, 5th, and 9th Amendments even though it is not explicitly mentioned in the text. Other concurring justices found the justification for privacy in the 14th Amendment (Harlan and White) and the 9th Amendment (Goldberg). Justices Black and Stewart dissented from the majority opinion, arguing that a right cannot be a “constitutional right” if it is not found in the Constitution. Such obvious logic escaped the seven justices in the majority. Black and Stewart argued, in effect, that just because a law is stupid or ill conceived does not mean it is necessarily unconstitutional.

The Court struck again in Eisenstadt v. Baird, invalidating a Massachusetts law making it a crime to distribute contraceptives, unless you were a doctor or pharmacist prescribing them for a married couple. In Eisenstadt the Court went beyond the marital privacy right established in Griswold by holding that privacy is inherently an individual right. In writing for the majority, Justice Brennan said, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision of whether to bear or beget a child.” Therefore, the Massachusetts law was struck down on equal protection grounds because, in the opinion of the Court’s majority, it discriminated against single people. The judicial attack on marriage as a covenant was underway.

The leap from Eisenstadt to Roe was a short one indeed. The 7-2 decision in Roe v Wade invalidated abortion laws across the country by voiding a Texas statute that prohibited abortion, except to save the life of the mother. The majority opinion, written by Harry Blackmun, held that abortion is a fundamental constitutional right and falls within the wide net of “privacy” cast over the side of the boat by Justices Douglas and Brennan in earlier decisions.

Blackmun did concede that the state has an interest in protecting fetal life after the second trimester, but he further undermined that holding with his opinion in the companion case of Doe v. Bolton. Writing there, the Blackmun majority held that a woman may procure an abortion after six months if a doctor determines that in light of “emotional, psychological, [and] familial” circumstances it is necessary for her “physical or mental health” to have an abortion. The “health of the mother” exception was written so broadly in Doe that a woman could literally receive a letter from her podiatrist pleading “medical necessity” and bypass state restrictions on abortion.

Furthermore, by insisting that abortion was a “fundamental” right, the Roe majority insured that state regulation must meet the legal standard of “strict scrutiny,” meaning that there must be a “compelling state interest” in restricting access to abortion. In layman’s terms, the legal standard established in Roe made it difficult for any legislation restricting abortion to pass constitutional muster. And with the decision in Doe, the Court created a gaping loophole making it virtually impossible to legislate against abortion.

Since Roe in 1973, abortion law has changed somewhat. A small number of limited restrictions have been placed on abortion, but the “right to choose” is as entrenched as ever in public policy despite public uneasiness with abortion on demand.

The Casey decision in 1992 upheld the central holding of Roe while using a different legal justification. The right to privacy was discarded while substantive due process and the “liberty” clause of the 14th Amendment were once again invoked to overturn state law, in this case several Pennsylvania restrictions on abortion. Two quotes from Sandra Day O’Connor’s majority opinion will sufficiently demonstrate the mindset of the Rehnquist Court:

The Roe rule’s limitation of state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives (italics mine).

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Once more, the Court used substantive due process undergirded by extreme individualist and egalitarian ideologies, completely at odds with the rule of law, to strip a sovereign state of its rightful privileges, all in the name of preserving the “fundamental right to choose.” The precedent establishment by the Rehnquist Court in Casey was also employed when the Supreme Court overturned Texas’ sodomy law in the Lawrence decision.

What do we learn from this short foray into Constitutional law?

First, the road to hell is paved with fundamental human rights. The perverted synthesis of two anti-Christian ideologies, individualism and egalitarianism, has led to the wholesale slaughter of America’s unborn.

Second, the revolutionary legal doctrines discussed above are at odds with any original understanding of the Constitution. Political elites like the idea of centralized rather than diffuse power. Abortion and contraception are just two of the weapons wielded by secularized elites to emasculate the institutions that mediate between the individual and Leviathan.

Church, family, and sub-national political entities have all been victims of the legal revolution unleashed by spurious legal doctrines such as “incorporation,” “substantive due process,” and “equal protection.” The Court has used misappropriated (i.e., stolen) power to strip states of their prerogatives and centralize power in its own bosom. In the process, it has accomplished the goals of the ruling class by consolidating and centralizing power and allowed the slaughter of a generation as a mere afterthought.

September 2, 2004

Darrell Dow writes from Jeffersonville, Indiana where he works as a statistician.  A misanthropic Paleoconservative, Darrell is the husband of Kathy, and the father of Joshua and Andrew.  To see pictures of the boys and get a small glimpse into the Dow house, visit the family website.  Darrell also maintains a website and a new blog.  Darrell can be contacted here.

Back to daveblackonline