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So much for 'super-duper' precedents

Posted By Jane Chastain On 01/19/2006 @ 1:00 am In Commentary | Comments Disabled

It is no secret that Roe vs. Wade, the 1973 decision that made it legal to kill an unborn child in every state, for any reason, under any circumstance, throughout the full nine months of a woman’s pregnancy, has big problems. First, it was based on world-is-flat technology.

“Gee, we can’t see in the womb. Therefore, we don’t know if an unborn child is alive so we simply won’t go there.” Paraphrased, this was the justification the high court gave for simply sidestepping the central issue and ruling in favor of convenience. In order to do this, a 5-4 majority decided that unborn humans were not legal “persons.”

Real-time ultrasound imagining and fiber optics now have given us a window to the womb. Furthermore, technology has made it possible to monitor a baby’s heartbeat at 16 days post-conception and brain waves at 39 days post-conception. A person is ruled to be legally dead when there is no heartbeat and no brainwaves. It should be obvious to any reasonable person that the presence of a heartbeat and brainwaves indicates life.

The second big problem with Roe is that there is no “right to privacy” in the Constitution. In 1965, Justice William O. Douglas, writing for the majority in Griswold vs. Connecticut, was the first to argue for this right saying it “presses for recognition.” In other words, he made it up. Later, in 1973, the gang of five that legalized abortion said they found one lurking around in the secondary shadows (penumbras) of the Bill of Rights.

That’s why abortion advocates are now hanging their hats on Supreme Court precedent or, to put it in legalese, stare decisis.

The most revealing moments in the Senate Judiciary Committee hearing on Judge Samuel Alito’s nomination to the Supreme Court came on Jan. 11, during questioning by Sam Brownback.

The senator from Kansas shot holes in the best argument the abortion-on-demand crowd will be able to muster should strict constructionists ever regain control of the high court.

Sen. Brownback pointed out that, over the years, the Supreme Court has made some bad decisions. Thankfully, many, but not all, of those bad decisions have been overturned. In fact, our nation’s highest court has reversed itself over 200 times.

Roe vs. Wade has been around over 30 years. In the hearing for Chief Justice John Roberts, Sen. Arlen Specter introduced the idea that anything that had stood for that length of time, not only set a precedent but a “super-duper” precedent.

Brownback brought up a case decided in 1896, Plessy vs. Ferguson, in which the high court ruled that segregation was legal where the state provided “equal facilities.” Some 60 years later the 1950s Supreme Court overturned it with Brown vs. Board of Education.

BROWNBACK: Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

ALITO: It was certainly – would be a factor that you would consider in determining whether to overrule it.

BROWNBACK: But obviously …

ALITO: Doctrine that would consider …

BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?

ALITO: Certainly.

BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy. Is that correct?

ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.

Alito went on to point out that the one thing the series of litigation that was necessary to overturn Plessy illustrated is the facilities that were supposedly equal, were not equal at all.

Yes, Plessy was built on misinformation, just as Roe was built on misinformation.

Brownback could have brought up another super-duper precedent: The 1857 Dred Scott Decision where the Supreme Court ruled that black people were not legal “persons.” A slave was merely property and could be bought, sold, used or even killed by the slave owner.

Any of that sound familiar?

It took a Civil War, three constitutional amendments and the Brown decision to grant freedom, civil rights, voting rights and equal protection to an entire class of individuals that the Supreme Court once refused to recognize.

Yes, the Supreme Court makes mistakes. In the Dred Scott Decision as in Roe vs. Wade, the Supreme Court got it wrong – dead wrong.


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