Friday, October 21, 2016

The great Roe V Wade lie

Watching the portion of the debate between Trump and Hillary concerning abortion last night I was struck by one thing. Most of us never actually read laws or court rulings. We rely upon the media or people like Hillary to tell us what the law says. The sad fact is much of what you hear is not factual. They twist, leave out key details, and flat out lie. Thus our laws and the rulings of our courts devolve into propaganda. Over and over again you hear as Hillary repeated last night that Roe V Wade established abortion as a constitutional right. Nothing could be further from the truth. Roe V Wade did affirm a woman's right to privacy and did strike down laws which criminalized abortion in particular circumstances. What they are not telling you is Roe V Wade actually affirmed life begins in the womb and the state has a compelling interest in protecting the life of the unborn.

Remember folks, these are lawyers and with lawyers words really do matter. Ideally, legal wording should make things crystal clear so there is no ambiguity. That is one of the aspects of this decision which I find very interesting. In so far as women's rights only two are mentioned. The right to privacy is one. The right to privacy is actually well defined by the 4th amendment. Roe V Wade struck down criminal abortion laws because they "....violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy."

While the constitution does not specifically call out privacy as one of the enumerated rights the 4th amendment does provide protection against unreasonable searches or seizures. That at least implies a right to privacy. Further, the constitution wisely does not attempt to list every single right we as people have. It specifically states this and mot importantly ascribes ownership of those rights not specifically enumerated to the people and the states. With respect to a right to privacy in general Roe V Wade is rock solid.

What is not so clear is the second right Roe V Wade appears to have created, which is "a woman's qualified right to terminate her pregnancy". The wording indicates this right exists as a consequence of the right to privacy. This appears to be a pretty big leap. It is certainly not a conclusion that everyone would find to be logical. The key to understanding this lies in the legal terminology used, specifically the finding abortion is a qualified right. What exactly is a qualified right?

The usage of this terminology is well considered because there are legal definitions that apply. Those definitions are essential to understanding what is being said. There are actually three different types of rights. In order to place what Roe V Wade is actually saying in its proper scope and perspective you must understand how these different types of rights are defined legally.

  • An absolute right is one that can not be infringed upon under any circumstance.
  • A qualified right is one the state can interfere with under certain circumstances.
  • A restricted right is one that can be restricted or revoked by law. For example, the right to own a gun is restricted as it can be revoked if an individual commits a violent felony.

What should immediately become clear here is Roe V Wade absolutely did not create an absolute right to have an abortion. That is clearly contradicted by the ruling itself. Remember, words and wording matter in law. 

Roe V Wade did not actually create a qualified right to have an abortion either. Remember, the founding principle of our republic has always been our rights exist, period. Granted by God, an endowment from our creator, by virtue of our humanity, because we exist.....pick you favorite. It doesn't matter, what does matter is our rights are not created by the state and are not endowed to us by the state. What Roe V Wade actually did was affirm, as far as the state is concerned, we all have the right to do what ever we wish without interference from the state unless the state has a compelling reason to interfere. This is a critical distinction and a very important principle. For this reason it appears obvious to me no one is going to "do away" with Roe V Wade much less place it in the "dust bin of history". More on that in a moment.

Roe V Wade defined two compelling reasons for the state to interfere with a woman's right to privacy and by extension to interfere with the qualified right to an abortion. Those two reasons are to protect the health of the pregnant woman and to protect the life developing inside the pregnant woman. This is so important. Roe V Wade defines protecting the life of the child developing in the womb as being of compelling interest to the state. That is a crucial point.

In this respect I am in complete agreement with the ruling. What I disagree with is the arbitrary definition of when life begins which ostensibly was predicated upon the state of knowledge back in the day.

When you hear people like Hillary Clinton refer to a woman's constitutional right to get an abortion I believe you are actually hearing propaganda. The idea being to change the culture, to change people's morals in fact, by repeating this mantra over and over until it becomes ingrained. Until it just becomes assumed a woman has an absolute constitutional right to have an abortion. One obvious desire is to shut down debate. It is also indisputable a lot of people would like to over turn the protection of the life of an unborn child Roe V Wade actually created. I believe most people fail to comprehend this is really the case.

The truth is Roe V Wade stands upon three distinct and equal pillars. Those pillars being a woman's right to privacy, the state's compelling interesting in protecting the health of pregnant women, and the state's compelling interest in protecting the life of the unborn child. The problem is no one ever talks about the third pillar or even acknowledges it exists. As I said before, Hillary is a lawyer. A lawyer should understand this. The fact of the matter is I really don't know what Hillary's personal view on abortion is. It could be she is truly passionate in her belief that abortion on demand, without restriction, is an absolute right. However, as a lawyer, as someone who aspires to be a leader, she should be truthful with the American people with respect to what this ruling really says on all points, not just those points that support her agenda or her ambitions. I suspect the real truth is abortion to her is a tool, a means to secure votes.

Below are references for your information:

The 4th Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Roe Vs Wade

    3) State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.
    (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.
    (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.
    (c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

    The text of the 14th amendment

    Amendment XIV

    Section 1.

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Section 2.

    Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

    Section 3.

    No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

    Section 4.

    The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Section 5.

    The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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