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10 July 2013

'Safe, Legal, & Rare'


 'I was born out of wedlock (and against the advice that my mother received from her doctor) and therefore abortion is a personal issue for me.  If one accepts the position that life is private, and therefore you have the right to do with it as you please, one must also accept the conclusion of that logic.  That was the premise of slavery.  You could not protest the existence or treatment of slaves on the plantation because that was private and therefore outside of your right to be concerned.  What happens to the mind of a person, and the moral fabric of a nation, that accepts the aborting of the life of a baby without a pang of conscience?'

- Reverend Jesse Jackson, How We Respect Life Is The Overriding Moral Issue, Right to Life News, January 1977

In Dred Scott v Sandford, 60 U.S. 393 (1857), Chief Justice Roger Taney wrote that slaves could be moved across state lines, were the individual property of their owners regardless of the state in which the latter moved the former, and that blacks were not citizens under the Constitution.  The despicable Taney wrote:

'[Negroes were to be] regarded as being of an inferior order and altogether unfit to associate with the white race ... and so far inferior that they had no rights which the white man was bound to respect.'

These were not persons, according to the Court, but property...and the Constitution, allegedly, recognised an individual right to own slaves.  

Both assertions were demonstrably untrue and, frankly, evil.

In Roe v Wade, 410 U.S. 113 (1973), in a 7-2 decision, Justice Harry Blackmun writing for the majority found an individual right to terminate a pregnancy because the unborn are not 'people' under the Constitution and women have a right to nearly inviolable rights to do with their bodies (property) as they see fit...although such reasoning does not transfer to the right of any person to sell an organ.  Moreover, the majority ruled that the Texas statute at issue, which had been on the books for more than a century and made abortion a crime except where 'procured or attempted by medical advice for the purpose of saving the life of the mother,' violated the Due Process Clause of the Fourteenth Amendment.  For the record, the Due Process of the Fourteenth Amendment provides that no state shall 'deprive any person of life, liberty, or property, without due process of law.'  Obviously, that irony was lost on the 7 Supreme Court Justices in the majority.

That is fundamentally the same decision that the Court made in Roe when it held that the unborn child had no rights we were bound to respect; that life in the womb could be snuffed out by someone else's choice.

So, let's see if I have this straight:

On the one hand, a kidney is NOT property and NO ONE, including women, have a right to dispose of it as they see fit without government permission.  Let the record reflect that a kidney does not have a heartbeat or its own DNA.

On the other hand, a foetus is relegated to the property of a woman and she can destroy it without government permission.  Let the record reflect the fact that a foetus not only has a heartbeat and its own DNA, it has a face, fingers, and feet.  A wart it is not.  A kidney it is not.  A 'collection of cells' it is not.  Furthermore, it is no more the 'product of conception' than the billions of people that have been born and inhabited this planet.

Of course Roe does not condemn millions to a lifetime of slavery, but rather to no life at all -- or, if one prefers, termination. (Euphemism is the first sign that an advocate feels queasy about what she's really advocating.) 

As Ed Whelan said in his testimony before Congress, 'Roe v Wade marks the second time in American history that the Supreme Court has invoked 'substantive due process' to deny American citizens the authority to protect the basic rights of an entire class of human beings. The first time, of course, was the Court’s infamous 1857 decision in the Dred Scott case. 

The Court in Roe devised the now famous, infamous, and not exactly scientifically sound trimester system.  The majority opinion broke down a pregnancy as follows:

‘(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’

- Roe v Wade, 410 U.S. at 164-165 (1973)

In Planned Parenthood v Casey, 505 U.S. 833 (1992), the Court rejected the trimester system saying '[w]e reject the trimester framework, which we do not consider to be part of the essential holding of Roe, which in all actuality can result in even more abortions even though the Court upheld ‘reasonable restrictions,’ such as parental notification, mandatory waiting periods, maternal informed consent, and bans at viability.  Casey, however, would also allow abortion on demand at any time of a woman’s pregnancy, including the date on which she is due, which is what Governor Cuomo attempted in his ‘women’s health and equality’ legislation recently.  To get an idea of how radical this stance is, Cuomo’s proposed legislation couldn’t even get passed by the legislature of his very blue state.  Nevertheless, let it be firmly understood that Casey drops the pretence used by the Roe Court and drew the legal reasoning behind ‘choice’ ever more closer to Dred Scott…and Plessy v Ferguson, 163 U.S. 537 (1896), for that matter.

The Court scuttlebutt has long been that Justice Anthony Kennedy, the author of the majority (5/4) opinion in Casey, was ‘this close’ to joining the 4 dissenting justices in voting to overturn Roe.  Interestingly, in attempting to thread the needle, he actually move both the Court and the holding in Roe nearer to the Taney and Fuller Courts, which were behind two of the most obviously despicable and constitutionally untenable decisions ever rendered by the highest court in the land: Dred Scott and Plessy.

Now, one may assume that I am somewhat 'out there' pointing out the eerie similarities between Roe and Dred Scott, but I am far from alone nor is such an observation made by only 'right-wing, extremist loons.'

'One of the most curious things about Roe, is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.'

- Laurence Tribe, liberal Harvard Law professor,
87 Harvard Law Review 1, 7 (1973)


'The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.'
- Archibald Cox, Harvard law professor and Watergate special counsel, The Role of the Supreme Court in American Government, Oxford University Press, 1976

'[Roe v Wade and Bush v Gore*] represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes.  Judges have no special competency, qualifications or mandate to decide between equally compelling moral claims, as in the abortion controversy. Clear governing constitutional principles are not present in either case.'

- Alan Dershowitz, professor of law, Harvard Law School 

'Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.'

- William Saletan, Unbecoming Justice Blackmun, Legal Affairs, May/June 2005.

'I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review....'

-Justice Byron White dissenting in Roe v Wade and Doe v Bolton, 22 January 1973

'As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right was granted elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the … years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.'

- Edward Lazarus, former clerk to Justice Harry Blackmun,

'What is unusual about Roe is that the liberty involved is accorded … a protection more stringent, I think it is fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interests that legislatively prevailed over it. And that, I believe … is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.

[Roe is] bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.'

- John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v Wade, 82 Yale Law Journal 920, 935-937

'Whatever the case, the very basis of the Roe v Wade decision -- the one that grounds abortion rights in the Constitution -- strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.  Abortion is a different matter. It entails so much more than mere birth control -- issues that have roiled the country ever since the Roe decision was handed down in 1973 -- and so much more than mere privacy. As a layman, it's hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.  If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers.  I'm pro-choice, I repeat -- but it would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.  Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument -- but a bit of our soul as well.'

- Richard Cohen,  Support Choice, Not Roe, The Washington Post, 20 October 2005

'Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.'

- Justice Ruth Bader Ginsburg

'I generally favor permissive abortion laws. And despite my lack of enthusiasm for Roe, I wouldn't favor overturning the decision as a jurisprudential matter. A generation of women has grown up thinking of reproductive freedom as a constitutional right, and the Court should not casually take away rights that it has determined the Constitution guarantees. Stability in law—particularly constitutional law—is critically important; the Supreme Court would do well to remember that. Still, the liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself.

Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic—but they're not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—even broadly construed—cannot convincingly be read to resolve.

You might say ' Hang on a second. This is a constitutional right at stake. You don't argue that blacks should place their civil rights at the mercy of the majority. Why should women? Isn't fighting for fundamental rights a matter of principle?'

Indeed it would be, if the right to abortion — like minority civil and voting rights — were unambiguously protected by the Constitution. But let's be frank: it isn't. The right to abortion remains a highly debatable proposition, both jurisprudentially and morally. The mere fact that liberals have to devote so much political energy to pretending that the right exists beyond democratic debate proves that it doesn't.

Lots of fundamental rights are protected by legal authorities other than the Constitution. For instance, the right not to be fired by a private employer because of one's race or religion is statutory, not constitutional. The right to abortion is in no way degraded by the fact that state laws may prove the best means of guaranteeing it. That simply reflects the absence of a national consensus about whether the right exists and, if so, what its limits should be.’

- Benjamin Wittes, editorial writer at The Washington Post and the author of Starr: A Reassessment (2002), Letting Go of Roe, 1 January 2005

'[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result. This is not surprising. As a constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.' 

- Kermit Roosevelt, University of Pennsylvania law professor

'The opinion [in Roe] is replete with irrelevancies, non-sequiturs, and unsubstantiated assertions. The Court decides matters it disavows any intention of deciding—thereby avoiding any need to defend its conclusion. In the process the opinion simply fails to convince.'

-  Joseph W Dellapenna, Professor of Law at Villanova University School of Law

'In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.'

- Cass Sunstein, the Robert Walmsley University Professor and Felix Frankfurter Professor of Law at Harvard Law School

'We all pick up tabs (being referred to as the 'author of the abortion decision'). I'll carry this one to my grave.'

- Justice Harry Blackmun, interview with the Associate Press, 1983

All of the above are/were pro-choice.

As Paul Greenberg succinctly wrote in his comparison of Dred Scott and Roe:

'Yes, there might still be some who didn't approve of slavery, and perhaps even demonstrated against it, but suppose they were outnumbered by far? Not necessarily by fervent disciples of human slavery, but by the mass of citizens who felt uneasy when the subject came up. These Americans might never own a slave themselves, but they wouldn't want to interfere with another citizen's right to own one. It was a free country, wasn't it?  So inflammatory an issue, so personal a choice, it would be explained, should be left to individual conscience, not dictated by an all-knowing state. For Dred Scott would have made it clear that slaves were only property, chattel, and as devoid of human rights as, well, as the human fetus today. Any scientific evidence to the contrary would be swept aside in favor of the citizen's right to choose.'

At its core, this issue is one of whether there are really rights to 'life, liberty, and the pursuit of happiness' or, if those 'rights' can be trumped by the decision of another because of 'choice.'   In his concurring opinion in Roe, Chief Justice Warren Burger wrote:

'Plainly, the Court today rejects any claim that the Constitution requires abortion on demand.'

But, if abortion is the equivalent of contraception, a foetus has no constitutional protections, and a woman has an inviolable right to control her body, then why shouldn’t abortion on demand be a constitutional right?  Why did the Court in Roe hold back?  Is it possible that not even the 7 justices in the majority believed that a foetus was nothing more than just a ‘potential human life,’ which was the sophistic foundation upon which they constructed their incoherent, inconsistent, and schizophrenic House of Roe?

I understand fully the physical, emotional, and financial burdens and demands that pregnancy and motherhood place on a woman.  I understand the socio-economic factors.  I understand that an unwanted pregnancy can disrupt a life plan.  I understand that principled, rational and even moral people can disagree.  Yes, I really do understand all of these.  Yet, none is a sufficient rebuttal.

Convenience is not a legal basis or defence.  If it were, then murdering the one's spouse would be legal since becoming a widow(er) is much preferable financially than is a pricey divorce.

Emotion cannot be justification for ending a human life.  If it were, then murdering the man, who violently sodomised your 3 year-old would be legal.

Disruption of one's life plan cannot be cause to kill another for, if it were, then a teacher, who gave one a failing grade, the boss, who refused to promote, or the banker, who turned down a loan, would all be fair game.

Fair-minded disagreement cannot justify abortion either.  If it could, then there would be no crime in calling a 4 week-old baby a 'foetus' and murdering it.

Do we really want to allow an individual's whims to decide whether a 'thing' is human or property in the hands?   Isn't that what differentiated a slave owner from an abolitionist?

When the only difference standing between a 7th month-old foetus' life and death is the decision of its mother, how can we argue that life is precious and life is not a subjective concept?  

How can we argue with a straight face that a wanted pregnancy is a ‘healthy and natural’ experience, as was once argued by Dr Bernard Nathanson, a pioneer in the abortion rights movement, the founder of NARAL, and abortionist before he renounced abortion and became a force to be reckoned with as a champion of life, but an unwanted pregnancy is a disease necessitating medical intervention to terminate it under the banner of ‘women’s health’?

When we permit the sole factor in the determination of what is life to be whether its mum is an exuberant woman anxiously awaiting the birth of her unborn baby or a woman, whose sole goal is to rid herself of her property, her ‘foetus’ as soon as possible, do we not diminish human life?  

What's the difference between a viable, but unborn child, and the sick or aged, who can no longer care for themselves?

Can we not opine that neither is very useful to society and, indeed, place a burden on it?  

Can we not argue that our 90 year-old grandfathers with Alzheimer's are inconvenient, an emotional drain, who impose physical and financial burdens that disrupt our life plans?  

Seriously, to paraphrase a certain Secretary of State, what difference, at that point, would it make that he has been born and the foetus hasn't?  

Are not the arguments for ending either life the same?

If the government were to require women to carry a tumour or other bodily growth, that would be a form of slavery; however, that is not the case with abortion.  As I noted above, a foetus is quite different than any other 'growth' that may develop on or in the body.  Unlike, say, a fibroid, a foetus is a human being in early development.  In fact, many states like California, the unlawful killing of a foetus, with malice aforethought, is murder (See California Penal Code §187) and, in cases like that of Danny Ray Poplin, Jr, where the mother survived and only the 'foetus' was killed, it is FIRST-DEGREE MURDER and carries a 50-year to life sentence.

How does it make sense that any action taken by another to cause a woman to miscarry her foetus can be an ‘unjust and unlawful taking of human life’ to such a degree that it constitutes first-degree murder, but that same foetus, which, as indicated, would otherwise be considered a human life in any other situation, is not classified as a human life if the woman carrying it decides to kill it?  One doesn’t have to be an advocate of criminally punishing the mother to point out the absurdity and the apparent desire to willfully suspend disbelief in the notion that some sort of physical, chemical, biological, emotional, or spiritual event occurs that changes a ‘foetal human life’ into just a ‘foetus’ that can be destroyed because its mother has made a ‘choice.’  I’ve heard of ‘magic vaginas,’ but I must admit – and, I am far from some country bumpkin unschooled in the ways of the world – that I’ve never heard of a ‘magic uterus’ that can change one thing into another simply based upon the whims of the woman whose organ it is. 

I don’t know, but maybe the Left could consult with these uteri and their Womb-a-Matic Magic Wands™ can cause money to grow on trees.  Most certainly, we are going to need some manna from sexual organ heaven to fund the ever-expanding welfare state and overall government, along with paying off the $17 trillion and growing national debt, considering the fact that the fertility rate of the United States has almost reached the level of parity with Europe, which decided several decades ago to commit suicide-by-demographics.

'In 1972, even as Roe was under consideration by the Supreme Court,' as Ramesh Ponnuru observed in his book The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life, 'the Massachusetts House by a landslide vote of 178 to 46 passed a measure that would have bestowed the full legal rights of children on foetuses from the moment of conception.'

Imagine that.  One the eve of the worst decision since Dred Scott where Justice Blackmun equated abortion with contraception, which it most certainly is not, the very liberal state of Massachusetts was on the verge of 'awarding' full legal rights to unborn children of any age.  The liberals of the deep blue Bay State didn’t resort to schizophrenic pretzelisation in a quest to argue that all unborn children are equal, but some are more equal than others.  No, they recognized that the foetus in the womb was an unborn child deserving of dignity, recognition, and constitutional protections.  I believe that Teddy Kennedy will be ice-skating on the Rivers Styx and Kokytos before we ever see Massachusetts liberals argue that the unborn deserve, at minimum, what they demand for Mumia Abu Jamal.

There is no need to invoke religion in the abortion argument because science and technology are quite sufficient on which to base the fundamental question of 'Who gets to decide whether a human life should be ended without due process of law?'

Suppose Dred Scott had remained as entrenched, even as celebrated, as Roe v Wade is today?  

I mean, if it were 'safe, legal, and rare...' /

'Another area that concerns me greatly, namely because I know how it has been used with regard to race, is the psycholinguistics involved in this whole issue of abortion. If something can be dehumanized through the rhetoric used to describe it, then the major battle has been won. … Those advocates of taking life prior to birth do not call it killing or murder, they call it abortion. They further never talk about aborting a baby because that would imply something human. Rather they talk about aborting the fetus. Fetus sounds less than human and therefore can be justified.'

- Reverend Jesse Jackson, How We Respect Life Is The Overriding Moral Issue, Right to Life News, January 1977


If you think Texas' law is extreme, see how the secular, social democracies in Europe and elsewhere treat abortion and...

UPDATE 2:   

The following was entered into the Congressional Record as Senate Testimony by Edward Whelan on Roe v Wade, 22 June 2005:

The defects of Justice Blackmun’s majority opinion in Roe are manifest and legion. A brief review of lowlights is nonetheless warranted:

  • Blackmun’s rambling world-history tour of “man’s attitudes toward the abortion procedure over the centuries,” 410 U.S. at 117, wanders from the ancient Persian Empire to the position of the American Public Health Association in 1970 and of the American Bar Association in 1972. Yet, even apart from how unreliable and misleading Blackmun’s tour has been shown to be, it fails to address squarely the most relevant history—the state of abortion regulation at the time of the adoption of the Fourteenth Amendment in 1868. As then-Justice Rehnquist’s dissent points out, as of 1868 “there were at least 36 laws enacted by state or territorial legislatures limiting abortion,” including the Texas statute the Court struck down in Roe. See 410 U.S. at 174-175 & n. 1.

  • Blackmun’s opinion modestly states:

‘We need not resolve 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.’ 410 U.S. at 159.

But while feigning not to decide the question of when a human life begins—a question that is in fact rather simple as a matter of biology—the Court in essence ruled illegitimate any legislative determination that unborn human beings are deserving of protection from abortion.

  • A critical step in Roe is the bare assertion, unsupported by any argument or authority, that the “right of privacy” protected by the Fourteenth Amendment “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 410 U.S. at 153.

  • In explaining the abortion regime that he was inventing, Blackmun stated:

‘This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day.’ 410 U.S. at 165.

This language openly reveals that Roe is a policymaker’s balancing of considerations, not an authentic judicial interpretation of the Constitution.’


 Dispelling the myth furthered by Justice Ruth Bader Ginsburg  and other abortion advocates that states were moving in the direction of legalising abortion in all cases, Russell Hittinger has summarised the actual state of play in the years just before Roe and his data proves that the Americans public and their elected leaders did not look at unborn children as 'collections of cells' or 'products of conception.'  

The following is from Ramesh Ponnuru's book The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life:

In 1963, Alan Guttmacher admitted that any change in the abortion laws that suggested the non-humanity of the fetus would ‘be voted down by the body politic.’

In 1967, 'reform' measures, usually concerning therapeutic exceptions, were turned aside in Arizona, Georgia, New York, Indiana, North Dakota, New Mexico, [and] Nebraska... In 1969, such bills failed to emerge from committee in Iowa and Minnesota, and were defeated outright in Nevada and Illinois.  In 1970, exceptions based on therapeutic reasons were defeated in Vermont and Massachusetts.

The facts bear him out.

In 1971, on the eve of Roe v Wade, repeal bills were voted down in Montana, New Mexico, Iowa, Minnesota, Maryland, Colorado, Massachusetts ... Connecticut, Illinois, Maine, Ohio, and North Dakota. In 1972, even as Roe was under consideration by the Supreme Court, 'the Massachusetts House by a landslide vote of 178 to 46 passed a measure that would have bestowed the full legal rights of children on foetuses from the moment of conception.  At the same time, the supreme courts of South Dakota and Missouri upheld their states' anti-abortion laws.  It was surely telling that during the very month that Justice Blackmun finished the draft of his Roe opinion, 61% of the voters in Michigan and 77% in North Dakota by referenda voted down repeal.

To be sure, reformers and repealers won a few legislative victories prior to Roe.  In 1967, Colorado liberalised its law, but it placed restrictions on abortion that were much more severe than anything permitted by post-Roe Federal courts.  Reform legislation also passed in North Carolina [1967], but with the rejection of mental health exceptions.  California [1967], Georgia [1968], and South Carolina [1970] changed, but did not repeal, their abortion laws.  The two most significant legislative victories for the repealers took place in 1970 in New York and Hawaii.  These victories, however, were narrow and contentious, and did not approximate the percentage of pro-life victories in other states at the same time.  At the time of Roe, there was evidence that the tide of opinion in New York had shifted back towards laws protecting the unborn.

Russell Hittinger, Abortion Before Roe, First Things, October 1994, pp 14-15.  Hittinger's account is drawn from David Garrow, Liberty and Sexuality (University of California Press, 1998), esp pp 316-19, 325, 329, 347-48, 370-71, 412, 483, 496, 544-47, 566-67, 577.


I thought that it would be interesting to look at some well-known Democrats and their old stances on abortion, along with letting the radicalism of one Senator Barbara Boxer speak for itself and put an exclamation point on the ending of this post…

'While the deep concern of a woman bearing an unwanted child merits consideration and sympathy, it is my personal feeling that the legalisation of abortion on demand is not in accordance with the value which our civilisation places on human life... When history looks back to this era it should recognise this generation as one which cared about human beings enough to halt the practise of war, to provide a decent living for every family and to fulfill its responsibility to its children from the very moment of conception.'

- Senator Edward Kennedy, 1971

'I am opposed to abortion and to government funding of abortions.'

- Governor Bill Clinton, 1986

In 1984, Congressman Albert Gore, Jr, voted for the Civil Rights Act of 1984, which would have 'protected unborn children from the moment of conception,' as he described it.   This vote was one of several that Gore cast for the pro-life position.

Not that he would probably admit it, but Joe Biden once voted to amend the Constitution in order to reverse Roe v Wade.  

In 1977, former Speaker Dick Gephardt co-sponsored a constitutional amendment to ban abortion, which he called 'unjust.'

'[Republicans have] been successful at painting the view of the pro-choice movement as abortion on demand - and nothing could be farther from the truth.’

- Senator Dianne Feinstein, Democrats Weigh De-emphasizing Abortion as an Issue, The New York Times, 24 December 2004 

'All these issues that put us into the extreme and not the mainstream really hurt us with the heartland of the country.  Even I have trouble explaining to my family that we are not about killing babies.’

- Donna Brazile, campaign manager of Gore's 2000 campaign, Democrats Weigh De-emphasizing Abortion as an Issue, The New York Times, 24 December 2004

'I personally don't think that we should have late-term abortions or partial-birth abortions.  I think that's a moral blind spot.'

- Congressman Timothy J Roemer (D-IN), former U.S. Ambassador to the Republic of India and one-time candidate for chair of the Democratic National Committee, who was backed by Nancy Pelosi and Harry Reid

'As a social liberal party with economic liberal and economic conservative wings, the Democrats are doomed to perpetual minority status.  As an economic liberal party with social conservative and social liberal wings, the Democrats might have a chance... Between 1968 and 2004, the Democrats went from dominating US government at all levels to being the minority party at all levels.  Their 36 year downfall was a direct result of the fact that they define themselves by social liberalism... Social liberals can be the minority in a majority party.  Or social liberals can be the minority in a majority party.  But social liberals can't be the majority in a majority party - not in the United States, not in the foreseeable future.  There just aren't enough social liberals in the American electorate.'

- Michael Lind, The Only Way That Democrats Can Regain A Majority, Talking Points Memo and The New Republic, 8 August 2005

Senator Dick Durbin used to claim that he served as the 'Master of Ceremony' five times at the annual pro-life rallies held at the State of Illinois' capitol in Springfield.  He voted in favour of amending the Constitution  to overturn Roe and maintained that abortion should be illegal and the landmark abortion case be overturned throughout the 1980s.

In October of 1999, former Senator Rick Santorum of Pennsylvania was on the Senate floor expounding the virtues of and need for a ban on partial-birth abortion. What follows is the colloquy between Senators Santorum and Barbara Boxer that developed when Santorum just wanted an answer to the question of when a baby is 'born.'

Mr SANTORUM:  I think the Senator from California would say that she and I, the Senator from Illinois, the Senators from Arkansas and Kansas, we are all protected by the Constitution with the right to life.

Would you agree with that, Senator from California? Do you answer that question? 

Mrs BOXER:  I support the Roe v. Wade decision.

Mr SANTORUM:  Do you agree any child who is born has the right to life, is protected by the Constitution once that child is born? 

Mrs BOXER:  I agree with the Roe v. Wade decision, and what you are doing goes against it and will harm the women of this country. And I will address that when I get the floor. 

Mr SANTORUM:  But I would like to ask you this question. You agree, once the child is born, separated from the mother, that that child is protected by the Constitution and cannot be killed? Do you agree with that? 

Mrs BOXER:  I would make this statement. That this Constitution as it currently is–some want to amend it to say life begins at conception. I think when you bring your baby home, when your baby is born–and there is no such thing as partial-birth–the baby belongs to your family and has the rights. But I am not willing to amend the Constitution to say that a fetus is a person, which I know you would. But we will get to that later. . . .

I think what my friend is doing, by asking me these questions, is off point. My friend wants to tell the doctors in this country what to do. My friend from Pennsylvania says they are rogue doctors. The AMA will tell you they no longer support the bill. The American Nurses don’t support the bill. The obstetricians and gynecologists don’t support the bill. So my friend can ask me my philosophy all day; on my own time I will talk about it. 

Mr SANTORUM:  If I may reclaim my time, first of all, the AMA still believes this is bad medicine. They do not support the criminal penalties provisions in this bill, but they still believe–I think you know that to be the case–this procedure is not medically necessary, and they stand by that statement.

I ask the Senator from California, again, you believe–you said “once the baby comes home.” Obviously, you don’t mean they have to take the baby out of the hospital for it to be protected by the Constitution. Once the baby is separated from the mother, you would agree–completely separated from the mother–you would agree that baby is entitled to constitutional protection? 

Mrs BOXER:  I will tell you why I don’t want to engage in this. You had the same conversation with a colleague of mine, and I never saw such a twisting of his remarks. 

Mr SANTORUM:  Let me be clear, then. Let’s try to be clear. 

Mrs BOXER:  I am going to be clear when I get the floor. What you are trying to do is take away the rights of women and their families and their doctors to have a procedure. And now you are trying to turn the question into, When does life begin? I will talk about that on my own time.

[. . .] 

Mr SANTORUM:  Once the baby is born, is completely separated from the mother, you will support that that baby has, in fact, the right to life and cannot be killed? You accept that; right? 

Mrs BOXER:  I don’t believe in killing any human being. That is absolutely correct. Nor do you, I am sure. 

Mr SANTORUM: So you would accept the fact that once the baby is separated from the mother, that baby cannot be killed?

[. . .] 

Mrs BOXER:  Define “separation.” You answer that question. 

Mr SANTORUM:  Let’s define that. Let’s say the baby is completely separated; in other words, no part of the baby is inside the mother. 

Mrs BOXER:  You mean the baby has been birthed and is now in the mother’s arms? It is a human being? It takes a second, it takes a minute—

Mr SANTORUM:  Say it is in the obstetrician’s hands. 

Mrs BOXER:  I had two babies, and within seconds of them being born—- 

Mr SANTORUM:  We had six. 

Mrs BOXER:  You didn’t have any. 

Mr SANTORUM:  My wife and I did. We do things together in my family. 

Mrs BOXER:  Your wife gave birth. I gave birth. I can tell you, I know when the baby was born. 

Mr SANTORUM:  Good. All I am asking you is, once the baby leaves the mother’s birth canal and is through the vaginal orifice and is in the hands of the obstetrician, you would agree you cannot then abort the baby? 

Mrs BOXER:  I would say when the baby is born, the baby is born and would then have every right of every other human being living in this country, and I don’t know why this would even be a question. 

Mr SANTORUM:  Because we are talking about a situation here where the baby is almost born. So I ask the question of the Senator from California, if the baby was born except for the baby’s foot, if the baby’s foot was inside the mother but the rest of the baby was outside, could that baby be killed? 

Mrs BOXER:  The baby is born when the baby is born. 

Mr DURBIN:  Will the Senator yield? 

Mrs BOXER:  That is the answer to the question. 

Mr SANTORUM:  I am asking for you to define for me what that is. 

Mrs BOXER:  I can’t believe the Senator from Pennsylvania has a question with it. I have never been troubled by this question. You give birth to a baby. The baby is there, and it is born, and that is my answer to the question. 

Mr SANTORUM:  What we are talking about here with partial birth, as the Senator from California knows, is the baby is in the process of being born— 

Mrs BOXER:  In the process of being born. This is why this conversation makes no sense, because to me it is obvious when a baby is born; to you it isn’t obvious. 

Mr SANTORUM:  Maybe you can make it obvious to me. What you are suggesting is if the baby’s foot is still inside of the mother, that baby can then still be killed. 

Mrs BOXER:  I am not suggesting that. 

Mr. SANTORUM: I am asking. 

Mrs BOXER:  I am absolutely not suggesting that. You asked me a question, in essence, when the baby is born. 

Mr SANTORUM:  I am asking you again. Can you answer that? 

Mrs BOXER:  I will answer the question when the baby is born. The baby is born when the baby is outside the mother’s body. The baby is born. 

Mr SANTORUM:  I am not going to put words in your mouth— 

Mrs BOXER:  I hope not. 

Mr SANTORUM:  But, again, what you are suggesting is if the baby’s toe is inside the mother, you can, in fact, kill that baby. 

Mrs BOXER:  Absolutely not. 

Mr SANTORUM:  OK. So if the baby’s toe is in, you can’t kill the baby. How about if the baby’s foot is in? 

Mrs BOXER:  You are the one who is making these statements. 

Mr SANTORUM:  We are trying to draw a line here. 

Mrs BOXER:  I am not answering these questions. 

Mr SANTORUM:  If the head is inside the mother, you can kill the baby. 

Mrs BOXER: My friend is losing his temper. Let me say to my friend once again–and he is laughing— 

Mr SANTORUM:  I am not laughing. 

Mrs BOXER:  Let me say, this woman is not laughing right now because if this bill was the law of the land, she might either be dead or infertile. So if the Senator wants to laugh about this, he can laugh all he wants. 

Mr SANTORUM:  Reclaiming my time, Mr. President. All I suggest is I was not laughing about the discussions. It is a very serious discussion. 

Mrs BOXER:  Well, you were. 

Mr SANTORUM:  I was smiling at your characterization of my demeanor. I have not lost my temper. I think I am, frankly, very composed at this point. What I will say–and the Senator is walking away–is the Senator said, again, the baby is born when the baby is born. I said: If the foot is still inside the mother? She said: Well, no, you can’t kill the baby. If the foot is inside, you can’t, but if the head is the only thing inside, you can.

Here is the line. See this is where it gets a little funny. 

Mrs BOXER:  Parliamentary inquiry, Mr. President. Let the RECORD show that I did not say what the Senator from Pennsylvania said that I did. Thank you. 

Mr SANTORUM:  Mr. President, I hate to do this, but could we have the clerk read back what the Senator from California said with respect to that question?

I understand it will take some time for us to do that. I will be happy– 

Mrs BOXER:  I say to my friend, I know what I said. I am saying your characterization of what I said is incorrect. I didn’t talk about the head or the foot. That was what my colleague talked about. And I don’t appreciate it being misquoted on the floor over a subject that involves the health and life of the women of this country and the children of this country and the families of this country. 

Mr SANTORUM:  It also involves–and that is the point I think the Senator from California is missing–it also involves when in the process–that is why people on both sides of the abortion issue support this bill, because it also involves what is infanticide and what is not. A lot of people who agree with you on the issue of abortion say this is too close to infanticide. This is a baby who is outside the mother. 

A question for my Hot Air readers, does Barbara Boxer remind you anyone?  Like, nonpartisan, perchance?  On the day that he backed himself into a corner and claimed to be a graduate of Harvard Law School, but incapable of answering the most basic legal questions?


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