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Judicial Activism and the Fight to End Abortion

The right to life is universally recognized among free peoples of the world and, accordingly, is invariably held in the highest regard and defended with the most vigor and fierce dedication.  Our Founding Fathers similarly acknowledged the right to life.  In the Declaration of Independence, Thomas Jefferson wrote: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

The Founders believed that the rights to Life and Liberty formed the foundational principles of our free society.  Accordingly, they established a system of government meticulously designed to ensure the laws yet to be formed would serve as the defender of these maxims rather than their oppressor.  To this end, our Constitution explicitly and exclusively reserves to the people and their elected representatives the right to create laws.  Unfortunately, some unelected judges have in recent years attempted to legislate from the bench and, thereby, eliminate or make major changes to state and federal laws which protect the most basic right of humans – the Right to Life. Through these rulings, the democratic system has been repeatedly circumvented as judges arrogantly and unconstitutionally disregard the will of the people.

In their eagerness to establish new laws reflecting their own personal political preferences, these unelected judges have trampled the voice of the people who speak constantly in defense of those who have no voice of their own.  Below at “Abortion Cases” are descriptions of the two court rulings which have unduly stretched the text of the Constitution in order to undemocratically alter the law and permit abortion in the United States.

As JAG succeeds in our mission of judicial renewal, the activist decisions which have attempted to eliminate the Right to Life for the most defenseless of our citizens will no longer be accepted as law, but instead will be discarded by courts and legislatures recognizing them as the illegitimate decisions they have been all along.  They will instead be replaced with the laws and constitutions established and constantly adapted by an involved and informed citizenry as initially designed by the Founders.

The elimination of judicial activism will not necessarily correspond with the end of the current threat to the sanctity of human life.  It will, however, rightly return the battle to the fields of public policy in the legislatures where the issue may be properly decided by an entire nation of free men and women rather than dictated by the personal political standards of a few unelected judges.

Abortion Cases:

Roe v. Wade.[1]  In 1973, the United States Supreme Court heard a pair of cases which challenged statutes regulating or completely outlawing abortion in the states of Texas and Georgia.[2]  The dissenting opinion of Justice William H. Rehnquist in Roe best captures the Court’s incredible arrogance in their unabashed creation of a previously non-existent Constitutional right, and summarizes the largely forgotten trail of statutes and public debate left destroyed in the wake of Roe:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.”[3]

The elimination of so many statues on the grounds of a “right” never mentioned in the Constitution, and certainly deserving nowhere near the importance nor weight of the Right to Life, is simply absurd and a clear violation of the Court’s duty to apply the law to the facts of the case.

Justice Byron R. White’s Dissenting Opinion in Doe v. Bolton identifies and articulates the Court’s usurpation of legislative power:

“I find nothing in the language or history of the Constitution to support the Court's judgments. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.”[4]

In Planned Parenthood v. Casey,[5] the United States Supreme Court was presented with an opportunity to correct the error of their ruling in Roe.  Instead, the Court arrogantly chose to maintain their position in an all too common case of “repeat judicial activism.”  In the courtroom, decisions are too often guided – not by legislation – but rather by so-called “case-law,” i.e., past court decisions, or precedent.  This adherence to “precedent” is said to provide consistency and uniformity among the numerous courts of the United States.  However, blind adherence to bad precedents results in the “consistent and uniform” multiplication of bad results.

Judges do not take their oaths to follow other judges, but rather to follow the law.  In some cases – such as Planned Parenthood v. Casey – judicial activism occurs when a judge simply follows precedent.  The Court’s ruling in Casey continues to suppress the role of the American People in protecting the Right to Life for those who cannot defend themselves.

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] The second case is Doe v. Bolton, 410 U.S. 179 (1973).

[3] Roe v. Wade, 410 U.S. 113, 174-76 (1973).

[4] Doe v. Bolton, 410 U.S. 179, 221-22 (1973).

[5] Planned Parenthood v. Casey, 505 U.S. 833 (1992).