Respecting tried and true precedents in courts of law is necessary to ensure logical consistency within the legal system. But this does not mean that courts should respect erroneous precedents and irrationally support them forever.
In this week’s Supreme Court opinion on June Medical Services, LLC v. Russo, a majority of pro-abortion justices bowed once again to a defective tin-God precedent that has reigned in ideological correctness for the forty-seven years since Roe v. Wade.
There is a stubborn streak in human beings steeped in ideological error. They cling to the prospect that if they tell a lie of convenience for long enough, the lie becomes precedent and succeeds in replacing the truth.
Such is the case with the Roe v. Wade’s big fat lie that has spawned a multibillion-dollar abortion industry.
The horrendous legacy of Roe’s brand-new 1973 pro-abortion precedent is the “lawful” prenatal killing of over 61 million American children.
The court’s latest opinion clings tenaciously to Roe’s big fat lie that there is a constitutional right to commission the killing of a new member of “our Posterity” because that “unwanted” little daughter or son, prospering in her/his mother’s womb, is “not a person in the whole sense” entitled to equal protection of the law.
In his dissent from what Justice Stephen Breyer called in his opinion “the constitutional right to abortion,” Justice Samuel Alito set out precise and valid reasons why there is no such constitutional right.
Indeed, to honest historians, it is incontestable that the Declaration of Independence established from the start the “unalienable” right of every innocent human being to go on living — a right “endowed by [the] Creator.”
This right is divinely bestowed at the point of creation of “the infant in the mother’s womb” — the term given by 18th-century lawyers to each diminutive child alive and growing organically and with exquisitely ordered self-determination in her or his mother’s womb.
Where Was Respect for Precedent When Roe Was Decided?
Where was respect for precedent in 1973 when the Supreme Court progressives conspired in Roe to depersonalize and so remove long-established legal protection from “the unwanted child” at risk of being exterminated by her or his mother’s abortionist?
Where was respect for precedent that went back to one of the stated purposes of the Constitution — “to secure the Blessings of Liberty to ourselves and our Posterity”?
Where was respect for the precedent established once and for all by Chief Justice Marshall, in United States v. Palmer (1818), that the words “any person or persons” are broad enough “to comprehend every human being”?
Where was respect for an age-old common-law precedent reaffirmed by the Supreme Court in Union Pacific Railway Co. v. Botsford (1891) “to guard against the taking of the life of an unborn child for the crime of the mother”?
The longstanding common-law doctrine of the maternal reprieve directly prohibits the execution of any woman carrying an unborn child so that her child’s own and separate right to go on living may be protected. Still today this recognition is codified in 18 U.S.C. § 3596.
Clearly, “the life of an unborn child” is valued under the Constitution and is to be protected by law. Neither the term “fetus” nor the term “person” was used specifically, but there was nevertheless a very real and longstanding recognition here that the Constitution must protect “the life of an unborn child” as a separate human entity of inalienable dignity and worth.
So where was respect for precedent when Justice Harry Blackmun claimed wrongly that “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment”?
At the 39th Congress in 1866, Sen. Jacob Howard, the 14th Amendment’s floor sponsor in the Senate, confirmed that the amendment applied to every living human being. This was specifically reaffirmed by the Supreme Court in Wong Wing v. United States (1896).
Until Justice Blackmun’s gross mistake in Roe, American law had long established that every human being is a person entitled to equal protection of the law.
And today’s Supreme Court pro-abortion justices are still disrespecting that incontrovertible precedent.
Appeal to Erroneous Precedent
This week’s ruling by the plurality and Chief Justice Roberts is, they say, “dictated by our precedents,” particularly Whole Woman’s Health v. Hellerstedt. Justice Alito, in his dissenting opinion, set out clear and detailed reasons why these erroneous precedents are inconsistent with the Constitution and the rule of law.
But Justice Clarence Thomas wrote that today’s decision is wrong for a far simpler reason:
“The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the ‘legal fiction’ of substantive due process… As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.”
Justice Thomas argued cogently that, “Moreover, the fact that no five Justices can agree on the proper interpretation of our precedents today evinces that our abortion jurisprudence remains in a state of utter entropy.”
“More importantly, we exceed our constitutional authority whenever we ‘appl[y] demonstrably erroneous precedent instead of the relevant law’s text.’ … Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.”
“Stunning” Third-Party Standing Error
Moreover, abortionists in this latest decision have been wrongfully empowered with third-party standing to challenge health and safety regulations on their industry practices. They have been granted standing supposedly on behalf of their patients but far more likely on behalf of themselves and the interests of their abortion businesses.
As Justice Thomas pointed out, “The rule against third-party standing is constitutional, not prudential. The judicial power is limited to ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’”
Examination of “the traditional, fundamental limitations upon the powers of common-law courts”, he wrote, “reveals that a plaintiff could not establish a case or controversy by asserting the constitutional rights of others.”
Justice Alito nailed the nature of this standing error.
“Both the plurality and [the chief justice] hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. Neither waiver nor stare decisis can justify this holding, which clashes with our general rule on third-party standing,” he wrote in his dissent.
“And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.”
Truth Is the Original Precedent
Truth preceded the Fall of human beings into the domain of lies and false starting points.
It is the duty of true justice to restore the precedents of truth. It exposes and discards faulty precedents such as the one that originated in Roe v. Wade and was “adjusted by [Planned Parenthood v. Casey]” to prohibit the ideological dogma of “undue burdens on abortion rights.”
True justice excoriates the absurd claim concocted four years ago in Whole Woman’s Health that hospital admission requirements for abortionists were an intolerable “burden” on women wanting abortions.
Nonsensical precedents deserve no respect.
Indeed, true justice must respect true precedents only.
Justice Neil Gorsuch summed up the errors of this week’s opinion succinctly:
‘To arrive at today’s result, rules must be brushed aside and shortcuts taken … to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed … toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review.
“But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.”
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