It's in the Constitution

By Ken Concannon
Herald Columnist
(From the issue of 5/1/03)

Somewhere in the course of any discussion on the subject of abortion, where one of the speakers is a supporter of legalized abortion or its current euphemism "choice," that statement is bound to emerge — even though it is not entirely correct. Anyone who is familiar with the Constitution knows that there is no reference to "abortion" contained anywhere in the Constitution or in any of its amendments. There was never a national debate on this subject that resulted in a consensus reflected in either the original articles of the Constitution or in an amendment to that document.

It exists as a Constitutional right because thirty years ago seven Supreme Court justices, considering challenges to abortion laws in Texas and Georgia (Roe v. Wade and Doe v. Bolton) believed that it should be. It continues in constitutional law because a majority of Supreme Court justices since the Roe and Doe decisions have been of a pro-choice mind, and because of a legal principle called "stare decisis."

"Stare decisis" is a Latin term meaning "to stand by that which is decided." It's a legal maxim that says that when a precedent has been established by a judicial decision — as in, for example, Roe v. Wade — subsequent cases that relate to the same issues covered by the precedent-setting case should be decided in accordance with logic established by the precedent setter. The principle, however, is not infallible. Where the courts have determined that precedent-setting cases have been wrongly decided, new precedents are established. This has happened many times.

The term has been employed a lot lately — and usually with hushed reverence — by pro-choice members of the Senate Judiciary Committee when potentially pro-life nominees are being considered for appointment to the federal bench. They do this because they believe that the right judges and "stare decisis" will protect Roe v. Wade from re-examination. They are wise to do this, because that terrible decision can't stand scrutiny — for several reasons.

When the Roe and Doe decisions were published thirty years ago many constitutional scholars — even some who favored legalized abortion — said the logic offered did not support the decision rendered. Moreover the facts relating to the humanity and viability of the unborn, as stated in the Roe decision, have since been scientifically proven to be untrue. As if that weren't problem enough for Roe, the decision itself offers evidence that it wasn't all about civil rights and "choice."

Roe v. Wade, the cornerstone of the pro-choice movement, owes as much to the discredited eugenics movement of the early twentieth century as it does to any concerns about privacy and reproductive choice. Not only does the Roe decision borrow extensively from a eugenics treatise — The Sanctity of Life and the Criminal Law, written by the noted eugenicist Glanville Williams — to make its case for legalizing abortion, it cites the infamous 1927 Buck vs. Bell decision that opened the floodgates for the mandatory sterilization of those among us deemed unfit by the state.

In a frightening exercise of "stare decisis" at its worst, Justice Harry Blackmun, who wrote the Roe and Doe decisions, cited Buck v. Bell to demonstrate that the right to privacy, so important to today's pro-choice contingent, is not absolute. The state could, for example, forcibly sterilize those it deemed unworthy of reproduction, as many states did back in the 1920s and 30s. They could still do it. Buck v. Bell has never been
reversed.

Like abortion, mandatory sterilization is not mentioned in the Constitution or in any of its amendments, but it is protected by the Constitution because of a Supreme Court decision. I guess you could say: "It's in the Constitution!"

Concannon is a freelance writer from Northern Virginia

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