Another Pen for Western Culture

Thursday, February 23, 2006

Would You Destroy US Law to Defeat Roe v. Wade?

South Dakota is busy passing a law making abortion a crime, and doctors convicted of performing an abortion can be punished by five years in prison and $5,000 fine. Five other states are racing to pass similar measures: Ohio, Indiana, Georgia, Tennessee and Kentucky. This calls for celebration! Doesn't it?

But wait--isn't abortion a protected right, under Roe v. Wade, no matter how illegitimate that decision?

Since when do states intentionally pass laws that are patently unconstitutional? Do long-term, unintended consequences no longer matter? Can we just say "chuck-it" to the whole system because one law is bad?

The play A Man for All Seasons documents the life of Sir Thomas More,
England’s Lord Chancellor. A key scene includes his debate with his son-in-law,
a righteous man who is frustrated by his father-in-law’s unwillingness to arrest
a man everyone knows to be bad. More won’t do it without proper grounds. His
son-in-law says in effect, forget the law. Tear down the law if you have to, but
get the bad man. More asks to what lengths his son-in-law would go to prosecute
the devil. The young man explains hotly that he would destroy the entire English
law to get at the devil. More then asks where the young man would turn for
protection when the devil turned on him.

Likewise, the question facing
conservatives is: to what length will we go to get at a bad case—to get
Roe v.
?Should conservatives destroy the institution of the law and the respect of
future generations by trampling stare decisis? The film’s Thomas More would
answer no. And did the movie romanticize its hero? Unlikely. More is known to
have once explained that were he sitting on the bench and asked to judge between
his father on one side and the devil on the other, “his cause being right, the
devil should have his due.

The quoted passage above is from another post, here. I have also discussed the rule of law here but it keeps coming up.

These un-Constitutional laws are terrible. Consider the precedent. Do we want every state to do its own thing, no one following an accepted national standard? Can you imagine what this would do to our system?


  • is stare decisis the end of the discussion? does that, and SHOULD that, trump all other aspects of an issue?

    if it's generally considered bad law - which, i think most people think "roe v. wade" is - then where does the discussion begin?? should there even be discussion??

    i think we've talked about this before, and i think you said that any opposition to "roe v. wade" should begin with legislation. i tend to agree, that the people of this country should be the basis for law.

    but what responsibilities do the states have? what rights do they have? what if the people of these states want these laws passed? do they have the ability to get this done?

    i'm too ignorant of law - just tossing out questions here. in any event, interesting events taking place.

    By Blogger J Holden, at 5:09 PM, February 23, 2006  

  • First, although I didn't edit the quoted passage (I kept thinking about it--should have taken out the sd reference)---anyway, stare decisis, a reference only to the Court's effort to follow its own decisions, is not germaine to actions of the states, but more on that below.

    Good question about the states. The states can pass resolutions noting they think Roe is wrong. This would have no power whatsoever, but could be persuasive. After all, what the Court/fed. legislature needs to see is the position of the majority. Resolutions (and Amicus or "friend of the court" briefs, which can be filed by anyone in any USSC case) are just the sort of thing that helps build support for any future attempts at a Constitutional amendment.

    I still prefer an amendment. This Roe problem began with an aberrant decision by a Court overstepping its bounds. I hate to see states do the same.

    The reality is, an amendment might never pass. While Roe is no longer supported by a majority, I don't know if 2/3 of the Congress is ready to overturn it, or if they ever will be.

    Finally, the abortion issue comes up every session in various cases. The Court elected just this week to hear one next fall. So there never was a need for states to pass laws like the ones being passed in South Dakota (laws obviously designed to force the Court's hand now that there may be an anti-Roe majority).

    In the end, Roe may be overturned by the Court. And that would not be inappropriate. But given the horribly political nature of Roe, (as well as the way Roe turned the Court into a political body, not only in America's mindset, but in reality)--given the politics, I will always prefer an amendment. This is the whole point of stare decisis--the Court can't just keep changing the law when the members tip 5-4 one way, then change it again when the balance of power tips the other way. You can't change the law the way you change your shoes. Doing so undermines respect for Court decisions. Stare decisis is supposed to protect the Court from the damage future members may do to it.

    Abortion was made legal when a Court did what the democratic legislature could not have done. If abortion is to be returned to the states, the ideal would be to do it through the democratic process.

    (Here I am writing another post, right?)

    By Blogger Steven Wales, at 8:18 PM, February 23, 2006  

  • This comment is in relation to the abortion question.
    The United State is a system of checks and balances, as we all know the three main checks are the Supreme Court, Congress, and the Presidency, but most people leave out that the states are a check on federal government as well. It is the responsibility of all our government heads to uphold justice. Now the question says that they believe that abortion is murder; this would seem to be self evident if the Supreme Court said that we had the right to kill anyone over 60 years would that still make it a right, and could the States refuse to follow that oder and potintually make laws contrary to that right. The answer is "yes". In the formation of our government this principle was under stood for example some States had established religions and restrictions in speech, and the fact of the matter was that the Constitution does not and did not over turned these laws. The states who are trying to pass these anti-abortion laws are working the way our government was intended to work. Above all we are a nation built on the rule of law, and laws which are unjust are not considered to be ligitamnet. The answer should supplie an adiquite explination for the question; it doesn't sufice for those who do not believe that abortion is murder, and unfortionatly i don't have the time to adress those.

    By Anonymous Anonymous, at 12:15 PM, April 04, 2009  

  • Anon, yours is an appealing answer; I am a whole-hearted fan of federalism, and would like to agree with you. But there must be a line drawn somewhere between federal power and state autonomy. I think the only fair and consistent place to draw that line is at the Supreme Court and the Constitution.

    The reason the Constitution did not change local laws regarding established religions is not because the states retained power to defy the Constitution, but rather because no one saw the establishment of a LOCAL/State religion as conflicting with the Constitution. The Constitution says "CONGRESS shall make no law establishing a religion." That is, the federal government can't do it. But the states remained free to do so--for a time.

    Thanks for an interesting comment.

    By Blogger Steven Wales, at 9:23 AM, April 06, 2009  

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