In 1776, America's founders declared, "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness." The founders concluded by appealing to "the Supreme Judge of the World" for the rectitude of their intentions. Unfortunately, appeals must still be made today for the right to life in our country.
Today, Nov. 8, 2006, in a case called Gonzales v. Carhart, the Supreme Court will hear oral arguments on whether the Partial-Birth Abortion Ban Act, passed by Congress in 2003, violates the Constitution because it has no "health of the mother" exception. In a long line of abortion cases, the high court has consistently denied to unborn babies the right to life. But abortion cases are not the only examples of the Court denying the rights of an entire class of people.
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In 1857, the Supreme Court in Dred Scott v. Sandford held that black people were mere property and not entitled to sue in the federal courts of our land. That ridiculous and shameful opinion was not constitutional and has long since been overturned by the Court, which now purports to recognize the equality of all persons under the law.
Nevertheless, over 100 years after Dred Scott, the high court again issued another ridiculous and illogical decision in Roe v. Wade, holding that a woman has a right to take the life of an unborn child due to a "right of privacy" created by the Court. Admitting that "[t]he Constitution does not explicitly mention any right of privacy," the Roe Court went on to state that the right of a woman to abort her unborn child was a "liberty" interest protected by the 14th Amendment to the Constitution.
Despite the fact that for centuries Western law recognized that life began in ventre sa mere ("in the mother's womb"), the high court chose to create a new right that effectively denied a right to life for an unborn child. Since that time, over 40 million children have been killed because of the theoretical opinions of a handful of judges in Roe.
Now, pro-abortion lawyers argue that Roe stands for the proposition that a woman not only has a constitutional right to take the life of an unborn child, but also the right to kill a child partially born. Such partial-birth abortion was rightfully criticized by Justice Clarence Thomas, who described the procedure as follows:
While the fetus is ... dangling partly out of the woman's body, and just a few inches from a completed birth, the physician uses an instrument such as a pair of scissors to tear or perforate the skull. The physician will then either crush the skull or will use a vacuum to remove the brain ... collapse the fetus' head, and pull the fetus from the uterus.
Under the 14th Amendment, states are not to deny "to any person within its jurisdiction the equal protection of the laws." Recognizing that a partially born child is a living person within the meaning of the law, Nebraska passed a partial-birth abortion ban without any "health exception" for the mother. The Supreme Court in Stenberg v. Carhart in 2000 held that Nebraska's law was unconstitutional because of the absence of a "health exception."
In response, Congress in 2003 passed the Partial-Birth Abortion Ban Act – which also had no health exception – after a determination that there is never a medically justified reason to perform a partial-birth abortion. Before the law took effect, several lawsuits were filed to stop the law, and federal judges ruled that the Act was unconstitutional. It is the appeal of those decisions that is now before the Supreme Court. (With attorneys at the Foundation for Moral Law, I filed a brief in this case, available at www.morallaw.org.)
The Supreme Court should recognize the will of the people as expressed by their representatives in Congress, as well as the truth stated by Justice Benjamin Curtis in his Dred Scott dissent nearly 150 years ago:
[W]hen ... the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution. We are under a government of individual men who for the time being have the power to declare what the Constitution is according to their own views of what they think it ought to mean.
As in Dred Scott, the integrity of our Constitution is at stake in the partial-birth abortion case before our high court. But more importantly, the lives of those children that are about to take their first breath and utter their first cry hang in the balance. For that decision we anxiously await, knowing that one day our nation will be called to give account before an even higher Court – and the one true "Supreme Judge of the World."
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