Wednesday, September 2, 2009


I just finished reading a book by Yale Law Professor Jack M. Balkin entitled What Roe v Wade Should Have Said. In it, Professor Balkin and ten of his academic peers from around the country have presented their versions of how Justice Harry Blackman should have explained and justified his controversial pro-abortion decision.

As a former appellate judge and legal educator, I read the tendered alternate opinions with a critical eye.

Not that I’m a fan of Blackman’s opinion. Quite the opposite. Roe v Wade has been picked apart from both the left and the right. It is almost universally seen as a poorly reasoned, poorly crafted apologia for Blackman’s and the Court’s decision to legalize abortion.

So I am tempted to weigh in.

The first lump in the mattress was the United States Supreme Court’s decision to take the case. No one has a right to have their case heard by that august body. At the threshold is a process known as Certiorari.

The Latin word “certiorari” means ‘to be informed of’ or ‘to be made certain of.’ It describes the process by which the Supreme Court decides which cases it will agree to hear. When the Court grants a writ of Certiorari, it in effect says that it wants to become more fully informed about the case. In other words, it agrees to allow the litigants to file briefs and make arguments before the Supreme Court.

The Supreme Court of the United States was created through Article III of the federal constitution. It is given jurisdiction to hear ‘cases and controversies’ arising under the constitution. It was long ago decided, and remains the law today, that the Court has no power to render advisory opinions. It does not, and cannot constitutionally, give legal advice.

The Supreme Court has no power or authority to declare Acts of Congress or laws enacted by state legislatures to be unconstitutional unless it is necessary to do so in order to decide a case or controversy which has been properly brought to the Court.

So much for Con Law 101.

Now come two pregnant ladies in Roe v Wade and Doe v Bolton who claim that the laws of Texas and Georgia respectively have denied them what they claim is a constitutional right: to have their pregnancies terminated by medically administered abortions.

Texas and Georgia object. They point out that both ladies have already delivered their babies; that the children have been received by adoptive parents; that there is no longer any case or controversy between the defendants and the plaintiffs. The matter presented is moot.

Justice Blackman addressed that argument in these words:

"The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid."

Two points come to mind. First, appellate review is effectively denied in all moot cases. What made these cases different from all those others which the Court refuses to hear because there is no existing case or controversy as required by the Constitution? Isn’t it obvious that the Constitution was intended to deny appellate review where there is no existing case or controversy?

So Harry Blackman thinks the Constitution is too rigid. So what? Who appointed him to amend the Constitution?

Second point. Is it really true that it takes longer to decide a Supreme Court case than it does to have a baby? Doesn’t the Court act in a matter of hours to stay an execution when the Justices think a defendant’s constitutional rights may have been violated? And didn’t the Court find a way to act swiftly in Bush v Gore?

No, Mr. Justice, your argument doesn’t wash. Of course, I can understand why you presented it. Even the most vociferous pro abortion advocates would have been embarrassed if you had simply admitted that your decision was nothing more nor less than outright judicial legislation, justified by you and your colleagues because in your personal opinions the state legislatures were not liberalizing abortion laws fast enough to prevent what some academics were then predicting: a catastrophic population explosion in the twenty-first century.

For better or worse, your draconian solution has been effective. In the past thirty seven years, fifty million Americans were denied the right to be born.

Enough for now. Stay tuned.


  1. I am so pleased I came across your blog today Judge (linked to it from the Friends of Article V site). You have so much knowlege to offer it's a shame the existence of this blog isn't more widely known. I will do my part to get the word out. I appreciate you sharing your wisdom. Please keep publishing on your blog!

  2. Did you ever continue this? I only saw this post and nothing further.

    I will write and maybe this will spur a response.

    The original case at law was moot, however as a class, pregnant women are probably not as good as a doctor who had performed an abortion and had been sanctioned - even though the doctor would be less sympathetic. There were still continuing examples, however, so eventually the case would have been heard.

    As to Roe being badly reasoned, or in the opinion of others was badly reasoned - commentary does not matter. What matters is whether the following three propositions can be refuted:

    1. The federal government has jurisdiction to overrule state action that violates the 14th Amendment rights of it citizens. While the Federalist Society does not like this proposition, the 14th Amendment is fairly clear on this point. Overturning Roe by overturning this damages quite a bit of equal protection law. The Federalists might like this to happen, but it would be tragic. One hypothetical would be that the Catholic Church could be banned from operating in those states where the people believe that the Pope is the Antichrist - effectively shutting down the Church in Alabama and Mississippi.

    The second provision is privacy. Privacy says that if the unborn are not recognized as persons under the law, their interests cannot be taken into account. In other words, you cannot go back to the bad old days where doctors were fined and women self-aborted or sought unsanitary abortions. If there is a "right to life" it must be recognized as full citizenship before the law.

    The third provision is that the plain language of the Constitution says that life begins at birth and that there is no federal positive law contradicting that. Barring that, the Court could set up a trimester system. What was not said was that the right to change this circumstance does not reside with the States, but with Congress alone, which is sovereign. Note that this is why Congress could pass a partial birth abortion law but the states could not.

    The answer in modifying the status quo, therefore, is to abandon the Federalist Society approach, which will never fly in federal court or be ratified by 2/3rd of the states (who also won't ratify a human life amendment - I can count and so can you), but to have Congress act under its 14th Amendment enforcement authority to move the start of legal existence to some earlier point in the pregnancy - realizing that with legal existence comes the responsibility to prosecute both the procurer as well as the agent of abortion services and the responsibility of the medical community to preserve life or be held liable. I suspect that if first trimester abortion restriction tried to work around these problems, the loopholes would make any such regulation moot. The best that can occur is something in the second trimester - of course, that would gut Pro-Life movement and Republican fundraising and GOTV - which is why abortion is an electoral politics issue, not a current controvesy.


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