Supreme Court hoopla: Rhetoric or reality?

Commentary by American Life League president Judie Brown

In case you missed it, many alleged conservative groups are moaning about the possibility that President Bush might nominate attorney general Alberto Gonzales to fill the vacancy on the U.S. Supreme Court created by Justice Sandra Day O'Connor's retirement. That doesn't really surprise me. Gonzales' record on abortion, for instance, is most suspect indeed. What did surprise me, however, was the president's suggestion that special interest groups needed to "tone down their rhetoric," and in particular the rhetoric concerning his good friend Alberto.

One could interpret that as a polite request to bug off.

Well, all things being equal, I object. Oh, don't get me wrong. I have no problem with the Bush/Gonzales friendship. But it seems to me that already this discussion of possible nominees to the Supreme Court has gotten way out of hand. There's far too much rhetoric and not much real reflection on what, if any, impact a new justice could have on the lives of innocent human beings who inhabit Petri dishes, storage units or wombs.

We know many of the ills affecting the body politic in this nation are in large part the direct result of courts legislating rather than interpreting the Constitution. And among the august bodies that have embraced this "judges as lawmakers" job description, it is the U.S. Supreme Court that has created the worst of all nightmares. It has fashioned a mythical right to privacy, it has denied that a human being exists prior to birth and it has seen fit to condone acts of euthanasia if, in fact, the victim has signed a living will.

We surely should be concerned about who is appointed to the Supreme Court, but I wonder if the typical American really knows why. In fact, I don't think the president knows precisely what is needed to stop the endless stream of lunacy that emanates from the U.S. Supreme Court. So I'll tell you.

First, thanks to a phenomenal research project conducted by the Life Legal Defense Fund; we now know that the goal needs to be adjusted. They have found that if the Supreme Court were to overturn Roe v. Wade and Doe v. Bolton, few surgical abortions would actually be stopped because "less than ten percent of the population would be affected." Say what?

An exhaustive study of state laws shows that only seven states (Arkansas, Louisiana, Michigan, Oklahoma, Rhode Island, South Dakota and Wisconsin) would have enforceable laws on the books that would ban abortion. These states represent less than ten percent of the U.S. population.

The rest of the state legislatures would have an opportunity to regulate, permit or ban abortion. So a simple overturning of Roe and Doe would really present the pro-life movement with an ominous challenge. But that's not the worst of it.

Because pre-Roe laws did not take into account those babies conceived but not yet implanted (the chemical abortions) nor those created in a test tube (research/IVF abortions) none of these babies, in any of the 50 states would be protected.

Not only that, but there's more. Justice Antonin Scalia said in his dissent in the Casey decision 13 years ago, "There is of course no way to determine that [i.e., whether the human fetus is a human life] as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human or the incompetent elderly no longer so."

It is clear that Justice Scalia, considered the strongest defender of life on the current Supreme Court, is aware of the fact that as it stands today the law does not in any sense recognize the human being prior to birth as a member of the human race. He is also warning us that preborn children are in a whole lot of trouble. And this is exactly why we should be looking beyond the rhetoric and directly at the facts.

The only way the Supreme Court is ever going to address the arrogance of Roe v. Wade and Doe v. Bolton and its progeny is when they choose to hear a case that deals specifically with the scientific evidence supporting the actual fact that every individual human being is a human being at the precise moment his life begins, regardless of where his life begins.

Unless and until the court is challenged on that fundamental point, nothing less is going to solve the murderous practice known as "legal abortion."

Congress has a golden opportunity to get this ball rolling now by doing everything it can to get hearings held on the Right to life Act of 2005, and voting that measure into law. Then we would have a solid, no nonsense law that defines a human being correctly. This bill, or something precisely like it, is our only hope.

So, while I take issue with Alberto Gonazales, who once said in a private meeting that he had no problem with Roe v. Wade, I take bigger issue with the president. He has had so many opportunities to set the stage for a real discussion regarding the meaning of the word justice, and how genuine justice is meted out by the courts of this country when it comes to human beings who are not yet born. He has failed in the past. But now he has the most awesome opportunity to get it right.

If President Bush set forth an agenda consistent with his pro-life convictions, it would be this:


  • Support – public advocacy – of the Right to life Act of 2005, and


  • A public statement that he will not nominate anyone to the U.S. Supreme Court who fails to articulate a strict interpretation of the Constitution, in particular the 14th Amendment.

The president has repeatedly compromised pro-life principle. We must let the president know that now is the time, not for politics as usual, but for statesmanship, for principle, for greatness.

The rhetoric is going to continue; the pundits are going to persist; but at the end of the day, it's the babies who will either win or lose. Let's hope we don't see another loss.

Release issued: 7 Jul 05