Roe v. Wade

PART II: The Rule of Women


On their part, they have retired into the judiciary as a stronghold. There the
remains of Federalism are to be preserved and fed from the Treasury, and from
that battery all the works of Republicanism are to be beaten down and erased.
By a fraudulent use of the Constitution, which has made judges irremovable,
they have multiplied useless judges merely to strengthen their phalanx.

                                        Thomas Jefferson

Having established, hopefully beyond question, that the Supreme Court has exceeded its power, the question now is to decide for whose benefit these transgressions have taken place. Too much emphasis has been placed on the idea that the Supreme Court Justices are simply following their own opinions and not enough on the idea that they are being pressured by others to forsake their oaths to uphold the Constitution.

On October 17, 1788, James Madison, the "Father of the Constitution," wrote to Thomas Jefferson; "Wherever the real power in a government lies, there is the danger of oppression. In our governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents but from acts in which the government is the mere instrument of the major number of the constituents. This is a truth of great importance but not yet sufficiently attended to." 1

To get a clue as to who this majority is let us look at Justice Douglas' concurring opinion in Roe v. Wade. Here, Douglas climbs far out on the limb to find new rights; " .. a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of 'the Blessings of Liberty' mentioned in the preamble to the Constitution. Many of them, in my view, come within the meaning of the term 'liberty' as used in the Fourteenth Amendment." Douglas has chosen the broadest, most ambiguous language of the Constitution in order to grant the Court powers that are "within the sweep" or rather - sweeping in their nature. After itemizing the first of his categories of rights he continues with the next; "Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children." Is it not obvious that these are all issues of great concern to women; is not the very expression "freedom of choice" the banner slogan that the feminists march behind? The Court's decisions are being spoon fed to them; it is women who are ultimately responsible for subverting the Constitution and corrupting our courts. We need not read the names of feminists and women's organizations listed among the Amicus Curiae, the result is sufficient to identify the cause.

It is not just with a broadened definition of privacy that the Court is willing to bend the rules. We find Blackmun writing; "The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review .. Our law should not be that rigid." Roe sues not just for herself but "on behalf of herself and all other women" in order to have the laws changed. Justice Renquist writes in dissent; "My understanding of past practice is that a statute found to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply 'struck down' but is, instead, declared unconstitutional as applied to the fact situation before the Court." Every time the law interferes with the desires of women the law must be altered. It seems that the Supreme Court's decisions have narrowed to just one rule to which all other rules conform, and that rule is; "What do women want?" The courts and justices can't even agree as to whether the right of privacy is be to found in the Ninth or Fourteenth Amendments. When a decision is made according to a rule of law, or any other rule, the method of reaching a decision should be clear. We are all familiar with what it means to "rationalize" or "justify" things in the negative sense of the words. You begin with a preordained conclusion and than work backwards to find a way to "justify" this conclusion. The evidence that this is what is taking place can be seen by the unclear, inconsistent, or contradictory nature of the arguments given. I move to the next example.

Blackmun prepares us for the majority conclusion with this quotation; "We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76 (1905): "[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." Further down in supplying reasons to reject abortion laws he writes; "It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." Later on he writes; "Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest' .. In the recent abortion cases, cited above, courts have recognized these principles." First the concept of "novel"ty is embraced and then novelty or "recent"ness is rejected, and then "recent"ness is embraced once again. To repeat, when someone variously accepts and rejects the same principle it portends towards a preordained goal and not a sincere attempt at an unbiased decision.

Regarding the rule concerning the chronology of laws we find Justice Renquist writing in dissent; "The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not 'so rooted in the traditions and conscience of our people as to be ranked as fundamental,' .. Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the 'right' to an abortion is not so universally accepted as the appellant would have us believe." Referring now to The Federalist papers we find Hamilton writing in No. 78; "This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first." So then the proper rule is to acknowledge recent laws as having precedent over the older ones; Blackmun wishes to do otherwise when it suits his purpose.

The next rationalization begins by saying that abortion in ancient times began with a small minority and then spread to the general population. We are told that The Hippocratic Oath which forbade abortion "originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. [Dr. Edelstein] points out that medical writings down to Galen (A. D. 130-200) 'give evidence of the violation of almost every one of its injunctions.' But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath 'became the nucleus of all medical ethics' and 'was applauded as the embodiment of truth.' Thus, suggests Dr. Edelstein, it is 'a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.'" 2

First, it is not clear whether said violations were simply non recognition of the Hippocratic Oath or legal violations of the same Oath which the physicians were required to make. It would certainly seem strange that the court would offer the violation of an oath as support for a decision. If decisions of the court were regularly violated by a large number of individuals would this be a justification for the behavior? If non recognition is the only issue why use the word "violation" which implies a transgression against a rule that was binding on yourself. At best the Court is careless in the wording it uses, at worse, it is advocating illegal behavior. Next, I would point out that the argument offered is self-defeating and rather absurd to anyone familiar with history. Every change in society begins with a minority or single individual and then spreads to the larger population. For example, abortion used to be considered unacceptable behavior in our country until a small group of feminists started promoting their "portico" manifesto which caused public opinion to shift in favor of abortion. Lastly, the Court admits that abortion is not consistent with Christianity, later it writes; "There has always been strong support for the view that life does not begin until live birth .. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith." 2  Whatever happened to the separation of church and state that "liberals" have so vigorously advocated? Not only is that boundary ignored, but the Court favors the beliefs of the Jewish minority over the Christian majority.

Blackmun ranges through history picking and choosing among different religious and ideological groups to find support for his conclusions. We are told; "Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion." There are a lot of things that "ancient religion" permitted that are not considered acceptable today - human sacrifice for example. A practice, according to some pro life people, that is comparable to abortion.  The Court goes on to say; "Most Greek thinkers .. commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25." In section 460 of the Republic we read; "The children of good parents [the officials] will take them to a rearing pen in the care of nurses living apart in a special section of the city; the children of inferior parents, or any child of the others born defective, they will hide, as is fitting, in a secret and unknown place."  The footnote in my book reads reads; "There can be no doubt that Plato is here recommending infanticide by exposure" [translated by G.M.A. Grube, Hackett Publishing Company, copyright 1974].  In the Jowett translation of section 461c we find; "with strict orders to prevent any embryo which may come into being from seeing the light; and if any force a way to the birth, the parents must understand that the offspring of such a union cannot be maintained, and arrange accordingly."  You will notice that infanticide and abortion are placed side by side as acceptable acts, so here again we find another practice in "ancient religion" which is considered comparable to abortion and which is outlawed today. Aristotle's quote reads; "As to the exposure and rearing of children, let there be a law that no deformed child shall live, but that on the ground of an excess in the number of children, if the established customs of the state forbid this (for in our state population has a limit), no child is to be exposed, but when couples have children in excess, let abortion be procured before sense and life have begun; what may or may not be lawfully done in these cases depends on the question of life and sensation. And now, having determined at what ages men and women are to begin their union, let us also determine how long they shall continue to beget and bear offspring for the state" [Jowett translation].

I will begin by noting that the prescribed abortions here are not a matter of "choice" for the women but imposed on the women by the state, as in communist China, to control population. Secondly, a "deformed child," and for Plato, "the children of inferior parents," are subject to mandatory infanticide due to the compelling interest of the state in eugenics. Lastly, in accordance with the classical philosophy embraced above, we might expect underage girls or any female incapable of supporting her expected child to be forced to undergo an abortion. The benefits could well be measured; fatherless sons are far more likely to end up in jail and fatherless daughters three times more likely to have children out of wedlock, thus continuing the destructive cycle. Think of the amelioration of taxation on the population from reductions in welfare, food stamps, subsidized housing, prisons, police, security devices, etc. Someone could strongly argue that the people as a whole would gain more than those women forced to have abortions would lose (if they were to lose.). Unfortunately though, the Court shows little regard for the good of the whole but mainly only for the good of women as dictated by feminists. If the Court wishes to embrace the ethics of Plato and Aristotle it may do so in its entirety, but to pick and choose things out of context invalidates the source as a reference and shows again the unethical manner in which the Court has arrived at its decision.



1 See also Fed. No. 10; "the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.... When a majority is included in a faction, the form of popular
government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object
to which our inquiries are directed. "

2 I will add a little more from Edelstein's writings to supply a better view of the context; "At the end of antiquity a decided change took place... Resistance against suicide, against abortion, became common. Now the Oath began to be popular... A new religion arose that changed the very the very foundations of ancient civilization. Yet, Pythagoreanism seemed to bridge the gulf between heathendom and the new belief. Christianity found itself in agreement with the principles of Pythagorean ethics, its concepts of holiness and purity, justice and forebearance. The Pythagorean god was also the God of the Jews and the Christians. As early in the "teachings of the Twelve Apostles" the command was given: "Thou shalt not use philtres; thou shalt not procure abortion; nor commit infanticide." Even the Church Fathers abounded in praise of the high-mindedness of Hippocrates and his regulations for the practice of medicine.4
   As time went on, the Hippocratic Oath became the nucleus of all medical ethics. In all countries, in all epochs in which monotheism, in its purely religious or its more secularized form, was the accepted creed, the Hippocratic Oath was applauded as the embodiment of truth. Not only Jews and Christians, but the Arabs, mediaeval doctors, men of the Renaissance, scientists of the Enlightenment, and scholars of the 19th century embraced the ideals of the Oath." (Edelstein, L., "The Hippocratic Oath," 1943, p.63-4.)
    In similar fashion we find Edelstein commenting on the "Pythagorean manifesto"; "Yet, in the 4th century B.C. the Hippocratic Oath in every respect was a timely manifesto. In that period many individual attempts were made to improve medical conditions.." (ibid. p.59)
    The Court also cites "A History of Medicine" (A. Castiglioni, 1947) which offers a similar sentiment; "This oath shows to what ethical heights the concept of professional practice had reached even in the times of the early medical schools of Greece... Especially worthy of note are three precepts that are in this oath: first, the prohibition to the physician of practising abortion." (p. 155-6.)
   As you can see, the Hippocratic Oath was an advancement of the pagan beliefs that preceded it; the Supreme Court, under the influence of feminism, is imposing regressive beliefs on the people of this country.

3 For a statement of the "Jewish faith" prior to the writings of Galen we find Josephus writing in the 1st century A.D.; "The [Jewish] law, moreover, enjoins us to bring up all our offspring, and forbids women to cause abortion of what is begotten, or to destroy it afterward; and if any woman appears to have so done, she will be a murderer of her child, by destroying a living creature, and diminishing human kind" (Against Apion, Book II, Section 25.)
   In effect, the Court is saying that the Jews of today are not really Jews at all as they they do not follow the precepts of Judaism. As of old, the Jews follow after false prophets, especially the ones dressed in long black robes.

"Abortion was practiced in Greek times no less than in the Roman era, and it was resorted to without scruple. Small wonder! In a world in which it was held justifiable to expose children immediately after birth, it would hardly seem objectionable to destroy the embryo." Edelstein, ibid., p. 10   ["expose" means to abandon (e.g. on a hillside) and leave to die as in "die of exposure," or by starvation, or to eaten by wild animals, etc., though there is always the chance someone will find the child and take him in.]
    When the opposing party in a suit repeatedly uses your own citations against you two thoughts come to mind; 1. You are a very bad attorney.   2. You are a very bad liar.
(if you are wondering why I switched translations it is because the Grube translation seems to refer only to infanticide (exposure) and not abortion; "if one [unauthorized child] should be conceived, and forces its way to the light, they must deal with it knowing that no nurture is available for it.")

" For Plato, foeticide is one is one of the regular institutions of the ideal state. Whenever the parents are beyond that age which he thinks best for the begetting of children, the embryo should be destroyed. Aristotle reckons abortion the best procedure to keep the population within the limits which he considers essential for a well-ordered community." Edelstein, ibid., p. 16.  I only add this to show you that, once again, relevant ideas supplied by Edelstein were not mentioned in the Court's decision. What also is relevant is what we find in the Court cited "A History of Medicine"; "The [Roman] law against abortion was also strict. Thus the Lex Cornelia [c. 81 B.C.] prescribed that whoever gave an aphrodisiac beverage or caused an abortion should be punished with deportation and the loss of part of his goods." (p. 227.)
    Perhaps it is only fair that we give the last word to a Roman who was neither Christian or Jew, that is to say - a real pagan; "So great is the skill, so powerful the drugs, of the abortionist, paid to murder mankind within the womb. Rejoice, poor wretch; give her the stuff to drink whatever it be, with your own hand: for were she willing to get big and trouble her womb with bouncing babes, you might perhaps find yourself the father of an Ethiopian; and some day a coloured heir, whom you would rather not meet by daylight, would fill all the places in your will." (Juvenal, Satire VI)

4 [Edelstein's footnote] Cf. the so-called [Greek writing,] The Apostolic Fathers, with an English translation by Kirsopp Lake, I, 1925, pp. 310-12 [Loeb] ; cf. also Gregory of Nazianzus, XXXV, col. 767 A [Migne] ; Hieronymus, Epist., 52, 15 (XXII, col. 539 [Migne] ).

Laws of Manu

(c. 1500B.C.)

Chapter V

89. Libations of water shall not be offered ...
90. To women who have joined a heretical sect, who through lust live (with
many men), who have caused an abortion, have killed their husbands,
or drink spirituous liquor.

Written by Thomas Pollock aka Spartacus,  Editor of  The Men's Tribune                                First Posted: 1997        Last Update: March 2001