Roe, Roberts and reality

Commentary from American Life League president Judie Brown

Judge John Roberts' nomination to serve on the U.S. Supreme Court has people along the fringes, both on the pro-abortion and the pro-life side, so busy positioning for the "big battle" that it almost makes one dizzy. Where do these people get their bizarre concepts of reality?

We've got Dick Durbin, the allegedly Catholic senator from Illinois, who reportedly had the audacity to ask Roberts what he would do if a question came up that might cause a conflict with his religion. While I suppose there are hundreds of ways one might interpret this, the bottom line is – who cares? If a man is such a wimp that he has to sidetrack his own religious beliefs to do his job, then we should immediately write him off as having no integrity at all.

Perhaps Durbin wants a wimp on the court. We should ask.

On our side we have people who dug up a quote Roberts' made two years ago, and have subsequently decided that he is of questionable character. He said, "Roe v. Wade is the settled law of the land. It is not – it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey."

Yes, he did say that two years ago, and yes, it could cause one to suspect that perhaps there's a problem with Roberts' perception of abortion. Is he saying that the U.S. Supreme Court's mythical "right to privacy" is so deeply entrenched in the thought process of Americans – as well as the law – that there is little hope of removing it? Could be. Maybe so, maybe not. Nobody asked him that question.

Is he suggesting that the 1992 Planned Parenthood v. Casey decision has negated any argument that the preborn child is a human being? We don't know. Nobody asked him that question.

What we do know is that the Casey decision affirmed Roe. We know that those justices referred to the baby as "potential life." We know that Justice John Paul Stevens admitted that the preborn are, under the 14th Amendment, non-persons.

We can assume that the Supreme Court chose not to question its 1973 decision in 1992, perhaps because they believed it was good law, or perhaps because they knew it was not good law but did not want to look foolish. Either way, the court again did not address whether the preborn child is a human being.

It seems all the U.S. Supreme Court is really able to address on matters pertaining to killing babies who live in the womb is this telling excerpt from Casey in 1992:


These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the muster of human life.

So, is Roberts going to be part of the sorcery the majority of the court has employed over these past 32 years? Is he going to fabricate his own brand of gobbledygook to avoid reality? Is he going to hide behind the 14th Amendment and deny that preborn human beings even be discussed? Nobody knows.

Regardless of the haranguing coming from either side, mostly aimed at getting media coverage or widening the valleys of conjecture, nobody can say without a doubt precisely how Judge Roberts will rule on the only principle that matters; and the only principle that matters is the very one that has been consistently ignored by nearly everyone on both sides: personhood.

Perhaps we need to revisit the only sentence in Justice Harry Blackmun's infamous Roe decision that should matter to anyone:


If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.

In other words, if a human being is defined as someone whose life begins at conception/fertilization (or in vitro manipulation or whatever newfangled way science comes up with next), every single preborn person will be protected under the 14th Amendment of the Constitution. If that happens, these unnamed members of the body politic – preborn children – will have a chance, once born, to devise their own personal views of liberty, their own concept of existence.

To this date the court has not seen fit to discuss this small matter of personhood. Perhaps this is why it is being ignored, even now during the first act of the next Supreme Court nominee's confrontation with pundits, news commentators, special interest groups and last, but not least, the Senate Judiciary Committee.

To my mind there is only one way to find out the actual answer to these perplexing questions. Let's have fair hearings based on what the Constitution really says and what this Supreme Court nominee thinks those words mean. If we get the impression from his comments that he, too, believes in elastic, modern day sophistry, as have many of those who have sat on that court, then we can make a decision.

Until then, I say, let the games begin!

Release issued: 29 Jul 05