July 24, 2018
Amid the Democratic National Committee-fueled crescendo of superlatives, screeching, screaming, and fiery rhetoric being aired to condemn President Trump's actions, we are just beginning to hear raucous voices honing in on a theme which will overwhelm all others — one spawned by Trump's nomination of Brett Kavanaugh to the U.S. Supreme Court.
Democrats will not try to challenge Kavanaugh's competency to sit on the high court because that's a certain loser. The theme will revolve around verbal images of back alley abortions, reinstatement of Jim Crow, disenfranchisement of minority voters and other obtuse threats of turning back the clock.
But considering that Senate confirmation may well hang on the votes of two pro-choice GOP senators, Lisa Murkowski of Alaska and Susan Collins of Maine, the main point of attack will be unsubstantiated allegations that Kavanaugh would vote to overturn Roe vs. Wade. "Roe" was the controversial 1973 decision that limited state governments' right to prohibit abortions before fetal viability.
A woman's right to an abortion and a state legislature's right to restrict them is a hot button political issue rarely discussed rationally in a normal voice. But for purposes of the balance of this column put aside preconceived notions and prejudices.
A woman’s right to an abortion and a state legislature’s right to restrict them is a hot button political issue rarely discussed rationally in a normal voice.
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The key player in "Roe" was Justice Harry Blackmun who authored the opinion and persuaded six of his colleagues to support it. Interestingly Blackmun was a Republican, appointed by Richard Nixon, and was once criticized by the left as being too conservative.
The issue presented was: "where in the Constitution does it say that states cannot impose an absolute ban on abortion?" In a 22-page opinion Blackmun traced the history of abortions and concluded that traditionally a fetus was considered viable at the beginning of the second trimester when it could be felt to kick.
He and his colleagues then needed to find Constitutional authority to overturn the state ban. The majority found it in a penumbra (the partially shaded outer region of the shadow cast by an opaque object) of the 14th Amendment ("no one shall be deprived of life, liberty or property without due process of law"). Huh? What life, liberty or property?
Blackmun reasoned that "liberty" included a "right to privacy," which included a right to an abortion during the first trimester.
Lawyers and judges who believe in strict construction of the Constitution absolutely hate "penumbras." They serve only to justify language that simply is not in the Constitution and thereby turn the Supreme Court into an un-elected, unaccountable super-legislature.
Dissenting in Roe were William Rehnquist (Nixon appointee) and Byron "Whizzer" White (Kennedy appointee). Both expressed concern that the court was engaging in impermissible judicial activism by finding a "Constitutional right" where no enumerated right exists.
So, would Kavanaugh vote to overturn Roe? Any answer would be pure speculation. Moreover judicial candidates will not answer hypothetical questions on cases that may come before them. Therefore we have to look at the tea leaves.
The Hill reported that in a recent speech Kavanaugh praised Rehnquist's dissent in Roe eschewing "freewheeling judicial creation of unenumerated rights …" So there's a broad hint but is that dispositive?
Mitigating against a Kavanaugh vote to overturn Roe is the age-old doctrine of stare decisis, meaning the decision was made and however faulty the underlying rationale the law must be firm and predictable going forward.
If indeed Kavanaugh is hostile to the basis of the Roe result he would be much more likely to distinguish a similar case from the Roe facts, which would leave standing the Roe decision.
And here's a legal theory you probably haven't heard before: The Roe court found that life begins at the end of the first trimester; it could have then ruled constitutionally that until then abortion is the mother's sole decision and afterward abortion would be subject to state homicide laws.
As Trump would say, we'll have to wait and see.
Jim Clark is president of Republican Advocates. He has served on the Washoe County and Nevada State GOP Central committees. He can be reached at email@example.com.