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Original Intent

We didn’t say much this year about the 37th anniversary of Roe v. Wade last Friday. Reader Kenn Christenson linked in the comments to this fantastic and sobering article from The Weekly Standard about how experience and ultrasound force many abortionists into a crisis of conscience and ultimately, of course, a choice.

I’m always reminded of this enlightening, maddening, and damning history of Roe v. Wade written in 2005 by the Los Angeles Times‘ David Savage entitled “Roe Ruling: More Than Its Author Intended”. It’s a long article (aptly titled), but it is well worth the read if you are at all curious at just how monumental a mistake the ruling is. Since 1973, we’ve killed, as a society, nearly 50 million people. The population of Spain is 40 million.

Savage’s article – besides the obvious abortion angle — highlights what happens when we appoint judges who value their own worldview over the Constitution and indeed subvert the latter to appease the former despite swearing an oath to do otherwise. From Savage’s article:

Last year (ed. 2004), on the fifth anniversary of Blackmun’s death, the Library of Congress opened his papers to the public. His thick files on the abortion cases tell the little-known story of how Roe vs. Wade came to be. It is the story of a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them.

It is also the story of a sometimes rudderless court led by Chief Justice Warren Burger. On the day the ruling was announced, Burger said, “Plainly, the court today rejects any claim that the Constitution requires abortion on demand.”

Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. “I fear what the headlines may be,” he wrote in a memo. His statement, never issued, emphasized that the court was not giving women “an absolute right to abortion,” nor was it saying that the “Constitution compels abortion on demand.”

In reality, the court did just that.

How did we get to this — a decision both a dissenting Justice (Burger) and the author of the majority opinion (Blackmun) claimed and believed didn’t do what it in fact did? It’s because Justice Blackmun — in a veritable avalanche of words and in his zeal to protect doctors and let them do their work wrote too much and without discipline. Instead of interpreting the Constitution according to the words on the page he read into it his desires — his result. In biblical interpretation this is called “eisegesis” — reading one’s own ideas and beliefs into the text. It ALWAYS leads to error and often heresy in theology. As in theology so the law. When people don’t like the result that will be reached by what they see on the page in front of them they read into the text a meaning that gets them to their desired result. And as in theology so in the law — it ALWAYS leads to error and a subversion of the meaning of the document. As in theology… this tendency shows a lack of faith in the original author and the document to handle the current problem — or at least as the current reader and interpreter wants the problem solved. It also shows an ignorance of the principles standing behind the original document. “Slippery slope”, “Law of unintended consequences” — call it whatever you want. I call it 50 million dead babies.

11 comments to Original Intent

  • The College Widow

    Very interesting, Floyd. An aspect to Roe V. Wade most will never read about. Thanks.

  • RES

    Thanks for an interesting post reminding of the importance of judicial restraint (and not just the kind ordinarily meant by that phrase.)

    It has long seemed to me that, as we do not know “when LIFE begins” the proper, prudent point at which such a line can be drawn, the point at which “a presumption of life” must be accorded, is at conception. It is certain that before the sperm and egg meet that no separate life exists, just as it is certain that after conception, absent some intervening event, a new individual entity comes into being. Prudence mandates we accord rights at the only clear demarcation.

    Of course, I think people should use their turn signals even when changing lanes.

  • “Eisegesis.” What a splendid, useful word. I’m embarrassed to admit I wasn’t familiar with it. There’s a hole in my apologetics where it will fit very nicely.

  • Scott M.

    Burger didn’t dissent,Floyd…Rehnquist and White were the only dissenters

  • Whatever happened to trimesters? Dividing a pregnancy into three-month periods doesn’t make sense scientifically or morally, but weren’t they a big part of the Roe case? But you never hear the word any more.

    • The Planned Parenthood of SE Penn. v. Casey case in the early ’90s abandoned the trimester approach for an “undue burden” approach. Does any regulation place an undue burden on a woman’s right to abort?

      And as a dad… our doctors always talked about weeks. Gestation is 40 weeks — which had me flummoxed because 9 months is 36 weeks dammit. I got over it.

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