About
Henry Mark Holzer Henry Mark Holzer is a Professor Emeritus at
Brooklyn Law School and author of the Supreme Court Opinions of
Clarence Thomas, 1991-2006, A Conservative’s Perspective.
In 1973, seven justices of the Supreme Court of the United States—Burger
[Chief Justice], Douglas, Brennan, Stewart, Marshall, Powell and
Blackmun—shamefully granted a license to America’s women allowing them
to abort their fetuses at any time between conception and birth.
The Court’s Roe v. Wade decision was nothing less than a license
to kill, and under its authority during the last thirty-five years
countless millions of the unborn have been destroyed. “Pro-choice”
became a euphemism for the power to decide to kill.
As immoral the pro-choice position is, it is light years from government
mandated abortions, from official state-policy infanticide.
Twenty-five years ago I wrote that:
“Few people realize that Roe v. Wade opened a Pandora’s Box when
the Supreme Court legitimized a “state interest” in pregnant women and
their unborn children. This time around—in this case—antiabortion
laws have been struck down and some women permitted to have abortions.
Next time around—in some future case—antiabortion laws may be upheld and
no women permitted to have abortions. The time after
next—depending on the current “state interest”—women may even be
compelled to abort. A farfetched notion? Science fiction? Not if we
accept the ultimate logic of Roe v. Wade—as seen from the
perspective of a 1977 Supreme Court case.”
This was a bold statement in 1983, and it was treated with derision by
virtually everyone who commented on it. Sadly, my critics understood
neither the clear implications of Roe’s ruling that the
government possessed an interest in pregnant women and their unborn
children, nor the implications of the 1977 Supreme Court case to which I
referred.
The case was Maher v. Roe.
In the wake of Roe v. Wade’s legalization of abortion, the states
were obliged to revise not only their abortion laws but also a
considerable number of related laws which were directly and indirectly
affected by that decision.
Connecticut Welfare Department regulations, which had paid for certain
childbirth expenses, limited state Medicaid benefits for first
trimester abortions to those which were deemed “medically
necessary.”
In 1977, in light of Roe’s legitimization of abortion, the
Supreme Court in Maher v. Roe was called upon to decide “whether the
Constitution requires a . . . State to pay for . . . [non-medically
necessary] abortions when it pays for childbirth.”
The Maher decision held that the Equal Protection Clause did not
require a state participating in the Medicaid program, which had made a
policy choice not to fund, to pay the expenses incident to
nontherapeutic abortions for indigent women simply because it had made a
policy choice to pay expenses incident to childbirth.
In the course of Justice Powell’s opinion he revealed, perhaps
inadvertently, the dark and potentially dangerous side of government’s
supposedly benign interest in pregnant women and their unborn children.
Powell wrote that “[t]he State unquestionably has a ‘strong and
legitimate interest in encouraging normal childbirth’ . . . an interest
honored over the centuries.”
The unmistakable implication of this statement is that “encouraging
normal child birth”—or, on the other hand, not encouraging it—is
a political policy choice for the state to make.
Depending on the circumstances, depending on where the “strong and
legitimate” government interest might lie in any given situtation, the
state’s political policy choice could well be not to encourage normal
child birth—instead, to “encourage” abortion, through the coercive power
of the state.
This horrendous yet unmistakable implication of Powell’s words, written
for himself and five other Supreme Court justices, was then spelled out
explicitly in footnote 11 of his opinion:
“In addition to the direct interest in protecting the fetus, a State may
have legitimate demographic concerns about its rate of population
growth. Such concerns are basic to the future of the State
and in some circumstances could constitute a substantial reason from
departing from a position of neutrality between abortion and childbirth.”
(My emphasis.)
If a state is not neutral between abortion and childbirth, it
necessarily favors one over the other.
If it favors abortion, how then does the state implement that
“legitimate concern” so important to “the future of the State”?
Ultimately, it implements that “concern” by compelling abortions.
In 1977, six justices of the Supreme Court of the United States (Powell,
Burger [Chief Justice], Stewart, White, Rehnquist, Stevens) subscribed
to this monstrous proposition by tacitly accepting Powell’s example that
excess population growth might be a sufficiently legitimate government
interest to allow a state to compel abortion.
Although Justices Brennan, Marshall and Blackmun—three of the Court’s
four liberals— dissented on the Equal Protection Clause aspect of the
case, not one of them even referred to Powell’s footnote 11, let
alone took issue with it.
A unanimous Supreme Court impliedly approved potential infanticide as
legitimate public policy.
What does this have to do with presidential candidate Barack Obama?
Plenty, because he may approve of the same thing.
The Democrat Party candidate for President of the United States has been
rightly criticized for not having produced any legal scholarship since
his graduation from Harvard Law School nearly two decades ago.
However, while a law student Obama did write and publish a short student
“comment” on an Illinois case that had ruled children could not sue
their mothers for injuries caused by the latter’s negligent driving
during pregnancy.
There are three points that need to be made about Obama’s student
comment.
First, although his task was to analyze the Illinois Stallman
decision, he went out of his way to stress “a pregnant woman’s interest
in privacy and bodily integrity,” to argue against “using civil
liability (e.g., the fetal-maternal law suit) to control the behavior of
pregnant women, and to deny that potential civil liberty could promote
fetal health. In the latter regard, he wrote that the Stallman
decision:
...indicates the dangers such causes of action present to women’s
autonomy, and the need for a constitutional framework to constrain
future attempts to expand “fetal rights.” (Obama’s quotation marks.)
In this, we see the customary pro-abortion exalting of the woman at the
expense of her fetus, whose “rights” he denigrates.
Next, in an early example of what we have learned is his deliberately
opaque style of communication, he wrote that:
[F]etal-maternal tort suits might entail far more intrusive scrutiny
of a woman’s behavior than the scrutiny involved in the discrete
regulation of the abortion decision.
Essentially, this is typical law student double-talk.
It is true that, under Blackmun’s discredited trimester analysis in
Roe v. Wade, a woman’s abortion decision is subject to some
government regulation. But Obama didn’t inform the readers of the
Harvard Law Review what that “discrete regulation” is, who
scrutinizes it, for what purposes, or why.
Yet Obama used this sophomoric observation as counterpoint to another
kind of scrutiny, that of a “woman’s behavior” in the context of a
fetal-maternal law suit. Again, readers of the Harvard Law Review
were left to wonder: what behavior, what scrutiny, by whom, for what
purpose, and why that scrutiny is more “intensive” than that given the
abortion decision?
In sum, Obama’s ersatz profundity, today held up by his supporters as
evidence of a superior legal intellect, is merely empty elite Harvard
jargon devoid of substantive meaning.
Not devoid of meaning, however, is Obama’s essay’s very revealing next
sentence, albeit a non sequitur:
On the other hand, the state may also have a more compelling interest
in ensuring that fetuses carried to term do not suffer from debilitating
injuries than it does in ensuring that any particular fetus is born.
This statement juxtaposes two alleged state “compelling interests: (1)
“ensuring fetuses carried to term do not suffer from debilitating
injuries,” and (2) “ensuring that any particular fetus is born.”
(My emphasis.)
Read fairly, Obama’s first alleged government compelling interest
reflects the Roe v. Wade assertion that the state has an interest
in the pregnant women and their unborn children. This is, as we have
seen, an extremely dangerous proposition if, among other state problems,
demographic considerations (e.g., overpopulation) require fewer children
be born. Then, government-mandated infanticide may be necessary to rid
us of the surplus.
Which brings us to the juxtaposed second alleged government compelling
interest, but one which, for Obama, is a less important interest:
ensuring that fetuses be delivered. Here, Obama may have been
speaking in code to make the same point that the Supreme Court made in
Maher v. Roe: that there are circumstances where it is in the
government’s interest that certain children (perhaps those with
developmental disabilities) not be born. There is only one way to
accomplish that: through government-mandated infanticide.
Barack Obama, presidential candidate, has come a long way from Barack
Obama, Harvard law student. In the latter incarnation he was allowed to
get away with opaque statements about reproductive policy. But today,
with Obama perhaps standing at the threshold of the Oval Office,
American voters—pro-choice and pro-life advocates alike—have a right to
know where he stands on government-mandated infanticide.
