By Stephen D. Foster Jr. | 10 December 2011
Anti-abortion fanatics have really had a field day since Republicans took over the House of Representatives, several governorships, and many state legislatures. Anti-abortion laws are being proposed and passed in every red state and even the U.S. House has passed anti-women and anti-contraceptive bills. The cause of all this is their disagreement with a Supreme Court case known as Roe v. Wade. The right-wing has been claiming for decades that Roe v. Wade was a liberal decision made by a liberal court. But is this the case?
In the decades since Roe v. Wade was handed down, conservatives have been making the claim that the court was liberal. Evangelical conservatives in particular have been prepared to use violence and the threat of violence to express their hatred of the decision. There are many aspects to this issue that we must examine. The makeup of the court, the Constitution, and religion are explored. To begin this examination, however, we must first know some of the background of this case.
Roe v. Wade was a landmark decision made in 1973 by the United States Supreme Court on the issue of abortion. Norma McCorvey, who used the name Janet Roe to remain anonymous in the case, became pregnant in 1969, and was subsequently denied an abortion under Texas law. In other words, a government violated her personal liberty. She got an attorney and proceeded to take her case all the way to the Supreme Court. The Court ruled that a right to privacy under the Due Process Clause in the Fourteenth Amendment to the United States Constitution extends to a woman’s decision to have an abortion.
The argument was that women had the right to privacy and that decisions regarding their bodies should be strictly between themselves and their doctors. Did the court make their decision based upon the Constitution? Was the decision made by a bunch of liberals or not? For that, we’ll have to briefly examine each Justice one by one. Let us begin with the Chief Justice.
Chief Justice Warren E. Burger:
Nominated In 1969 by President Richard Nixon, Burger became known as a critic of Chief Justice Warren and an advocate of a literal, strict-constructionist reading of the U.S. Constitution through many speeches he had given throughout his career before becoming a member of the Court. An active campaigner for Republicans, including Eisenhower, Burger had conservative leanings. He was opposed to gay rights and supported the death penalty. Burger can hardly be labeled as socially liberal.
William O. Douglas:
In 1975, a TIME article called Douglas “the most doctrinaire and committed civil libertarian ever to sit on the court.” Nominated to the high court by FDR in 1939, he believed that a judge’s role was “not neutral.” Douglas was a liberal leaning independent and thus was one of the swing votes on the Court. As further proof that Douglas wasn’t a pure liberal, he once stated that, “The Constitution is not neutral. It was designed to take the government off the backs of the people….” This statement aligns perfectly with the Libertarian wing of the Republican Party.
William J. Brennan Jr.:
Brennan was the leader of the judicially liberal wing of the Court. Nominated by President Eisenhower in 1956, he was known for his outspoken progressive views, including opposition to the death penalty and support for abortion rights. A Roman Catholic, Brennan defended himself during a confirmation hearing against Joe McCarthy’s attacks and proclaimed that he would rule solely on the basis of the Constitution and not on Church law. He was confirmed by a near-unanimous vote, with only Senator McCarthy voting against him. Brennan was most certainly the most liberal Justice on the Burger Court, and as he promised, he never let his religion influence his decisions.
The son of a prominent Republican mayor in Ohio, Stewart was nominated by President Dwight D. Eisenhower to the Supreme Court where he sat firmly in the ideological center. Stewart was a major swing vote and wasn’t firmly entrenched with one side or another. By looking at the decisions Stewart made, it’s clear that he didn’t subscribe to one set of political viewpoints and served as a true independent on the court. He made his decisions based upon his interpretation of the Constitution which is what conservatives claim to want judges to do.
Appointed by John F. Kennedy in 1962, White put his football celebrity to use as chair of John F. Kennedy’s campaign in Colorado. During the Kennedy administration, White served as United States Deputy Attorney General, the number two man in the Justice Department, under Robert F. Kennedy. Justice White’s ideology is tough to pin down. Kennedy supporters saw him as a disappointment who hoped he would have joined the liberal wing of the court in its opinions on Miranda v. Arizona and Roe v. Wade. Although White didn’t join liberals on those cases and many others, he strongly supported the Supreme Court decisions striking down laws that discriminated on the basis of sex. In the tradition of the New Deal, White frequently supported a broad view and expansion of governmental powers. Despite his ruling in Roe, White leaned liberal.
The first African-American to sit on the high court, Marshall was nominated by Lyndon Johnson in 1967 and served on the Court for the next twenty-four years, compiling a liberal record that included strong support for Constitutional protection of individual rights. His most frequent ally on the Court was Justice William Brennan, who consistently joined him in supporting abortion rights and opposing the death penalty. It is safe to say that Marshall was a liberal.
Best known as the author of Roe v. Wade, Blackmun was nominated to the court by President Nixon in 1970. A lifelong Republican, Blackmun was expected to adhere to a conservative interpretation of the Constitution. Warren Burger was a good friend of his and Blackmun voted with Burger in 87.5 percent of the closely divided cases during his first five terms (1970 to 1975), and with Brennan, the Court’s leading liberal, in only 13 percent. But that changed and for the remainder of his career, increasingly ruled with Brennan and Marshall. In the majority decision in Roe v. Wade, Blackmun wrote, “Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision – with the guidance of her physician and within the limits specified in Roe – whether to end her pregnancy. A woman’s right to make that choice freely is fundamental…” So Blackmun was a conservative for most of his life and career on the Court but became increasingly liberal, especially after 1975. But the fact is, he was more of a conservative in 1973.
Lewis F. Powell, Jr.:
Yet another nomination by Nixon in 1972, Powell developed a reputation as a judicial moderate, and was known as a master of compromise and consensus building. Powell wrote a memo that may have sparked the formation of conservative think tanks. Despite this, Powell compiled a decidedly moderate record on the Court, cultivating a reputation as a swing vote with a penchant for compromise.
And now we get to the staunchly right-wing Justice on the high court. Nominated by Richard Nixon in 1972, Rehnquist favored a conception of federalism that emphasized the Tenth Amendment’s reservation of powers to the states. On the Burger Court, Rehnquist promptly established himself as the most conservative of Nixon’s appointees, taking a narrow view of the Fourteenth Amendment and a broad view of state power. Rehnquist almost always voted “with the prosecution in criminal cases, with business in antitrust cases, with employers in labor cases, and with the government in speech cases.” In 2000, Rehnquist wrote a concurring opinion in Bush v. Gore, the case that effectively ended the presidential election in favor of George W. Bush.
For a closer look at the records of these Justices, visit www.oyez.org .
The composition of the court is an important aspect in this entire debate. There were two true liberals on the court, Brennan and Marshall. There was one true, albeit extreme, conservative, Rehnquist. Four of the Justices were swing votes, Powell, Douglas, White, and Stewart. Of these four, only Stewart was a true independent, while Powell leaned conservative and Douglas and White leaned liberal. Burger was in fact a conservative, and he voted that way in most cases, but he respected the rulings handed down by the Warren Court and refused to wage ideological warfare on the high court. Blackmun is perhaps the most unique. He began his career as a staunch conservative, and ended it as a liberal. It should be noted, however, that from 1970 to 1975, he was more of a conservative than Powell was.
Most pro-life supporters point to religion as their reason for being anti-choice. But none of these men on the court can be accused of not having religious views. Chief Justice Burger was a Presbyterian as were Douglas and Powell. There are many Presbyterian churches and therefore, many different doctrines as well. Some are pro-life, others, pro-choice. Brennan was a Roman Catholic. Roman Catholics are generally supposed to be pro-life. Stewart, Marshall, and White were Episcopalians. The Episcopal Church has adopted a nuanced approach to abortion. Blackmun was a Methodist. Methodists are all over the place in their social beliefs. And Rehnquist was a Lutheran, which makes him the most unique. Lutherans are generally supportive of life but are largely pro-choice. However they encourage women to seek out alternatives to abortion. They oppose abortion when “a fetus is developed enough to live outside a uterus with the aid of reasonable and necessary technology,” which aligns with the decision the Supreme Court handed down in Roe v. Wade. Lutherans oppose “laws that deny access to safe and affordable services for morally justifiable abortions,” such as in cases of rape and incest, and “laws that are primarily intended to harass those contemplating or deciding for an abortion.”
Clearly, all nine Justices did not make their decisions based on their religious beliefs. Even Rehnquist did not make his decision based on religion. Like all the other Justices, he made his decision based upon his interpretation of the Constitution. Not the Bible. The Justices made their decisions based on the only document that matters.
So what about that interpretation of the Constitution? Does the Due Process Clause in the 14th Amendment really include a right to privacy? The Due Process Clause reads as follows, “…nor shall any state deprive any person of life, liberty, or property, without due process of law;…” Personal liberty is part of this clause, and since privacy is tied to this, privacy is most definitely included within the Due Process Clause. Let’s face facts. One cannot have liberty without privacy. The two go hand in hand. Now, many pro-lifers will point out that the clause also says, “life” as well. However, the 14th Amendment refers to “all persons born,” and the threshold for legal rights has traditionally been birth. This tradition goes back centuries, and is even present in the Bible. So the seven Justices who made the majority decision were not only acting on the words of the Constitution, they were acting on centuries of precedent as well.
In conclusion, Roe v. Wade was a bipartisan decision made by a conservative leaning court. The seven Justices who made the majority decision were made up of liberals, conservatives, and independents. Even the two Justices who dissented were also divided politically, one was a liberal, the other a conservative. The decision is representative of what conservatives say they believe about government, that it should stay out of our lives. If conservatives truly believe that the Constitution was written to keep the government out of our lives, they should support this decision without question.
Nothing is more personal and private than what a woman decides to do with her own body. None of us want to be told by strangers or government what we can or cannot do with our own bodies. Conservatives will say that state governments should be allowed to make these decisions but that is contradictory, since state government is still government. No government has the right to violate your privacy. No government has the right to invade our personal lives. If a woman chooses to have an abortion, she should be free to do so. And if a woman chooses not to have an abortion, she should also be free to do so. For too long, Evangelical conservatives have intruded into the private lives of American women across the nation. They have disgraced and violated the Constitution, ignoring the rights and freedom guaranteed to the people. These folks on the Christian Right have no interest in following the Constitution. Their only goal is to shred it and replace it with their interpretation of the Bible. The problem is, that interpretation is misleading and incorrect. But that’s another article.
Conservatives constantly claim that the Constitution is supposed to protect us from the government, yet they continue to use government to violate it. Roe v. Wade is the front line defense of Constitutional rights for women. It gives them the power to make decisions about their own bodies and privacy that has long been denied to them by men. Repealing this 7-2 landmark decision would be an assault on the Constitutional rights and protections that we hold most dear. This decision is not some 5-4 party line vote. It was an overall American decision that protects freedom and liberty as guaranteed by the Constitution.
This decision was made by a group of men who put the Constitution before religion, which is what the Founding Fathers intended. By reversing Roe, conservatives would be contradicting their own belief of individual rights and small government. They would be forcing their beliefs down our throats based on a religious text that has nothing to do with the founding of America and our system of government. Conservatives would be basically voiding the Constitution and all the rights, freedoms, and protections that come with it. Once we go down the road of stripping away rights and freedoms, it’s only a matter of time before those who wish to take rights away from one group, seek to take rights away from the rest of us.
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