Its most famous bogus amendment came in 1973.  That year the Court handed down Roe v. Wade, a piece of fiction that nullified the abortion laws of forty-nine states, nineteen of which had recently liberalized those laws.  Public opinion was becoming more tolerant of abortion and the states were changing their laws to reflect that trend.  Ignoring our constitutional guarantee of a "Republican Form of Government," out judicial employees snatched control of the abortion issue away from "We the People" anyway.

Three out of four Nixon appointees were among the Gang of Seven who voted for the majority opinion.  Chief Justice Warren Burger, who Nixon chose to lead the Court away from Earl Warren's buccaneer ways, voted for it.  Harry Blackmun, Nixon's second nominee, wrote it.  Only William Rehnquist and Byron White, a Kennedy appointee, voted no [1].

White expressed concern about the Supreme Court's image.  The Court was planning to nullify all existing capital punishment laws around the same time it decided Roe v. Wade.  Taken together, those two rulings would send an awful message about the Supreme Court's values.  It would seem to prefer killing the innocent rather than the guilty.  Some of the more liberal justices just smiled.  The Second Great Commandment of Acluism demands that the innocent be punished and the guilty rewarded [2].

Millions of Americans now cling to Roe v. Wade, a judicial invention they believe is somehow based on the Constitution.  The ruling, however, had no basis in the Constitution, and the Court majority made only a half-hearted effort to hide that fact.  Legal scholars, therefore, reacted with distaste [3].

Legal scholars are not surprised when the Supreme Court "evolves" the Constitution.  But they expect a convincing cover story.  A clumsy "evolution" risks loss of public trust in our "rule of law."  Even the Court's young law clerks saw Blackmun's opinion for the pathetic piece of fiction that it was; they called it "Harry's Abortion."  As a constitutional interpretation they thought it was absurd.   They were also embarrassed by the plain fact that it had resulted from political horse trading among the justices rather than judicial loyalty to any constitutional principle [4].
 

DUE PROCESS MISCHIEF

In 1791, when America adopted the Bill of Rights, the common law, which was followed in every state, prohibited abortion after "quickening" (the mother's first perception of fetal life within her, usually at about 17 weeks of pregnancy).  Harry Blackmun's majority opinion acknowledged this fact.  Blackmun disposed of this objection with a long, boring discussion, the central point of which was that abortion after "quickening" was probably not a felony, but only a misdemeanor.  Right! Our founders must have intended to protect abortion in the Bill of Rights, along with freedom of religion and freedom of speech, because they didn't make it a felony, only a misdemeanor.  No doubt that bit of humbug was part of the reason the clerks called Blackmun's opinion "Harry's Abortion."

In any case, the Gang of Seven relied mainly on the 14th Amendment rather than the Bill of Rights.  After about 8000 words of sophistry, they got to the bottom line [5].

A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

Let's submit that assertion to a little sanity test.  The 14th Amendment was ratified by the necessary three-fourths (28 out of 37) of the states by July 9, 1868.  Twenty-three of the twenty-eight ratifying states had anti-abortion laws on the books when they ratified it.  And many of them treated abortion as a felony, not a misdemeanor.  You will not be surprised to learn that nobody, at the time the Amendment was ratified, mentioned the possibility that it might nullify all those laws, many of which had been passed in the prior few years. The Gang of Seven would have us believe that our forefathers ratified the 14th Amendment, intending it to nullify laws they had just passed, and nobody mentioned that possibility.

Everybody on the Court was aware of this history; Justice Rehnquist summarized it in his dissenting opinion.  No doubt that's also part of reason the clerks called Blackmun's opinion "Harry's Abortion" [6].

Actually, the historical evidence condemned the majority opinion even more emphatically than Rehnquist's dissent had suggested.  The states passed a blizzard of new anti-abortion laws around the same time they ratified the 14th Amendment.  Many of those laws specifically excepted "from criminality only a lifesaving (abortion) procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved."  Many of those laws also passed by overwhelming majorities [7].

The Ohio Legislature toughened the state's anti abortion laws in 1867, the same year it ratified the 14th Amendment.  It voted in April 1867 to make abortion illegal at any stage of pregnancy.   The Senate vote was 21-8, the House vote 53-30.  Later, in 1867, the same Ohio Senate that ratified the 14th Amendment voted unanimously to outlaw "the publication, sale, or gratuitous distribution of of drugs, medicines, and nostrums intended to prevent conception, or procure abortion."  Illinois also toughened its anti-abortion laws in 1867, the same year it voted to ratify the 14th Amendment, raising the penalty for performing an abortion to at least two and not more than ten years.  The bill passed unanimously in both Houses [7].

Florida ratified the 14th Amendment on June 9, 1868.  During the same session, it revised its abortion laws to criminalize any attempted abortion at any stage of gestation.  The penalty was set at one to seven years in prison.  The Florida statute and the Ohio statute (mentioned above) were virtually unchanged in 1973 when the Gang of Seven opinined that their authors, in voting to ratify the 14th Amendment, had intended to make their own contemporaneous legislative work "violative of the Due Process Clause" of that same Amendment [8].

Both Vermont and New York passed tough new anti-abortion legislation in the year following their ratification of the 14th Amendment.  The 1867 Vermont law criminalized abortion at any stage of the pregnancy and outlawed the "advertisement and distribution of abortificant materials or information."  The 1868 New York law outlawed the advertising of abortion (and contraceptives).  New York followed up in 1869 with legislation to criminalize abortion at any stage of the pregnancy.  New York toughened its abortion laws twice more within the next few years [9].

Within a fifteen year period (1860-1875) surrounding the ratification of the 14th Amendment, 16 of the 28 ratifying states toughened their anti-abortion laws.  Much of that legislation criminalized abortion "without regard to pregnancy stage and without recognition of the other interests involved."  Much of it also excepted "from criminality only a lifesaving procedure on behalf of the mother."  Congress tacitly endorsed this legislative trend by passing the so-called Comstock Law in 1873 [10].

The above information was readily available to the Gang of Seven when they all voted for "Harry's Abortion."  It was also available to the various justices who voted, during the past 30 years, to uphold this outrageous fraud.  Put aside, for a moment, your personal view as to whether, or to what extent, the laws ought to restrict abortion, and consider a far more urgent question.  Do I want my judicial employees trashing the Constitution and ruling by decree? [11]

NOTES & CITATIONS

1.  See the online essay, Viking Jurisprudence.

2.  Justice White's concern for the Court's image is described in McKeever, pages 56-7.   The Roe v. Wade opinion can be found on the Internet at a web site operated by Cornell University.  To learn more about the two great commandments of Acluism, see Chapter 11 in The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy.

3.  Glendon, 1987, cited six prominent legal scholars who criticized Roe v. Wade.  See her pages 44, 171, and 172.  McKeever's Chapter 4 also contains an account of the adverse reaction of legal scholars to the opinion.

4.  A discussion of the legal fiction that our Constitution "evolves" can be found in the online essay, Our Evolving Constitution.  A description of the Supreme Court clerks' reaction to "Harry's Abortion" can be found in Woodward, page 276.  The opinion relied heavily on Griswold v. Connecticut which announced that the Constitution contains "penumbras" which, from time to time, "emanate" startling new "rights."

5.  The use, by the Court, of the due process clause of either the Fourteenth or Fifth Amendment, to mask the invention of fraudulent new constitutional matter has been called the substantive due process scam.  The passage quoted here is from Justice Blackmun's majority opinion in Roe v. Wade.  The text of the opinion can be found on the Internet

6.  Dates of state legislation to ratify the 14th Amendment can be found in a table opposite page 214 in Fairman and Morrison.  They can also be found online at the House of Representatives web site, http://www.house.gov/Constitution/Amend.html.  Dates of anti-abortion legislation contemporaneous with the drafting and ratification of the 14th Amendment can be found in the book by Mohr.  See also Justice Rehnquist's dissenting opinion in Roe v. Wade.

7.  See Mohr, Chapter Seven.

8.  See Mohr, Chapter Seven.  See also the Roe majority opinion.

9  . Vermont ratified the Constitution in 1866 and New York in 1867.  Vermont passed anti-abortion legislation in 1867 and New York in 1868, 1869, 1872, and 1875.  See Mohr, pp 210-219.

10. The sixteen states were Connecticut (1860), Illinois, Ohio, and Vermont (1867), Florida and New York (1868), Michigan, Massachusetts, and Nevada (1869), Louisiana and Pennsylvania (1870), New Jersey (1872), Minnesota and Nebraska (1873), Kansas (1874), and Arkansas (1875).  The foregoing list is not all inclusive; some of these states toughened their anti-abortion laws more than once during the period in question.  To review the content of these laws see Mohr, Chapter Seven.

The federal Comstock Act of 1873 made it a felony to publish, distribute, or possess "information about or devices or medications for unlawful abortion or contraception."  "Unlawful," of course, meant contrary to any state law.  The maximum penalty was five years at hard labor plus a $2000 fine.

11. In 1868, our elected representatives would have been outraged at the idea that the Supreme Court, which they then viewed with contempt, would have the gall to fabricate fraudulent new content in the 14th Amendment.  At that time, distrust of the Court was so pervasive that an influential newspaper called the Court "a diseased member of the body politic" that was at risk of "amputation."   A prominent framer of the 14th Amendment threatened "the abolition of the tribunal itself" if our judicial employees didn't quit usurping "the power to decide political questions.  Our founders adopted the Fourteenth Amendment partly to nullify the Court's catastrophic Dred Scott opinion.  In order to make the message perfectly clear, they wrote the Fourteenth Amendment to specifically confer enforcement power on "Congress" rather than the courts.

For publication information on works cited above, check the Bibliography

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This article is excerpted from Chapters 25 and 26 in The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy.  However, it also contains new material not included in the book.

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D. J. Connolly