The Roe v. Wade Scare Ad Tactic

CLU 09/08
by C. Paul Smith

The selection of Sarah Palin as the Republican Vice Presidential nominee has been a home run for Senator McCain and the Republicans. She is a true conservative. She wants to drill for oil in Alaska, where she is governor. Not only does she say she is pro-family, but she has a large family to prove it. Not only does she say she is pro-life, but she loves the Down syndrome baby that she bore at age 44, five months ago. She is attractive and articulate. She is proud of her small-town roots. She challenges the man-made global warming alarmists. She despises the politically correct, left wing mantras. She is one of us! She has done for the Republican Party what John McCain could not do—energized the conservative base. Both Senator McCain and Governor Sarah Palin are solidly for the Right to Life—and starkly opposed to the Democratic ticket’s pro-abortion stance. Sarah Palin’s nomination has catapulted the McCain/ Palin ticket ahead of Obama/Biden in the polls.

This is not good for Senators Obama and Biden. In fact it is bad for them. In fact they are desperate to stop the McCain/Palin Express before they get run over. This calls for an early deployment of the Democrats’ Ace Card—the Roe v. Wade Scare Ad Tactic! The Democrats had hoped to wait until later in the campaign to play this card, but the explosive success of Sarah Palin has precipitated the Democrats’ plunge in the polls, and has put them in panic mode. Tonight (September 5, 2008) on the way home from work, I heard on the radio three times a new ad from Senator Obama—an ad that attempts to counteract the Palin bounce; the ad warns the women of America that McCain will overturn Roe v. Wade, and that this will endanger the health of American women and deprive them of their cherished right to an abortion.

During the last 35 years no Supreme Court case has been more of a lightning rod for polarizing political debate than the Roe v. Wade decision of 1973. That case was controversial from the moment it was announced, and it has remained controversial ever since. Every time a president nominates a new Justice for the Supreme Court, the most important question for interrogation is whether or not that nominee would overturn Roe v. Wade. But, other than addressing the Roe v. Wade issue superficially, with 3-second, sound-bite answers, there has been very little in-depth discussion of this issue. Perhaps in this year’s campaign there will be an opportunity for a more meaningful discussion of Roe v. Wade than normally occurs. This discussion would be very good.

As one who has been a student of the Roe v. Wade ruling for over 30 years (including having written a book on the issue in 1977 [The Fetal Right to Life Argument]), let me share some important insights on this important issue.

1. Overturning Roe would not have to eliminate a woman’s right to privacy. If Roe v. Wade ever were overturned, there are several ways in which it could happen—none of which would require eliminating a woman’s right to privacy and of control over her own body. These alternatives would limit a woman’s right, but not extinguish it. To understand the ways Roe v. Wade could be overturned, you must first understand the three legal problems that were part of this ruling. Correcting any one of these problem areas could be overturning a part of Roe v. Wade.
2. There are three major flaws in the Roe v. Wade ruling. The Roe v. Wade opinion is rather complex. That ruling was one of the worst decisions of all time. It ranks right up there with Dred Scott v. Sandford. There are at least three distinct, serious flaws in Roe v. Wade.

First, the Supreme Court should have exercised judicial restraint and left the Texas legal matter in the hands of the Texas Supreme Court. The U. S. Supreme Court should not have taken the case; the regulation of abortion had been and should have continued to be a matter of state regulation and concern. But even after taking the case, the Court could have recognized a woman’s right to privacy without extinguishing the fetal right to life. But the Court’s over-reaching was uncalled for and grossly excessive.

Second, the Supreme Court went out of its way to state that a fetus is NOT a “person” within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. This gratuitous swipe at unborn children was totally uncalled for, unprovoked, illogical, barbaric and a repudiation of two hundred years of legal precedent in America. The eliminating of a fetal right to life was an act of outrageous over-reaching by the Judicial Branch of the government that encroached upon the Legislative Branch of the federal government (by usurping a power that should be only legislative and not judicial.) By what authority did the Supreme Court eliminate the fetal right to life in order to bestow on women a right to kill their unborn children without any consideration of the life of the unborn? The Court had no right. The Court usurped the authority of the states, the legislature and the people when it did this.

Third, the Supreme Court should not have legislated a resolution to the abortion debate. But they did. They constructed a complicated and contradictory legislative scheme to regulate abortions throughout the states: They came up with the trimester scheme where in the first trimester states could not prohibit abortions; in the second trimester states could regulate abortions, taking into consideration the health of the pregnant women; and in the last trimester states could protect potential human life. But the Court also stated that states could protect potential human life when the fetus becomes “viable.” As science and technology have advanced, this standard conflicts with the trimester scheme.

3. Roe v. Wade allowed States to prohibit partial-birth abortion. As terrible as was Roe v. Wade in 1973, today many interpret Roe to extend a woman’s right to an abortion to encompass the right to partial birth abortions. Partial birth abortion literally kills a viable fetus by crushing its skull and sucking its brains out. In 1973, Roe v. Wade specifically provided that states could outlaw this barbaric procedure. But since then, many have interpreted the right to an abortion to supersede the right of a state to prohibit abortions in the last trimester. This broadened interpretation of Roe is reprehensible and should be challenged.

4. A President can neither overturn a case nor amend the Constitution. Contrary to the assertion in the Obama ad, the President of the United States cannot overturn Roe v. Wade. That can happen only by the Supreme Court reversing itself or by passage of a constitutional amendment, the latter of which can only be done by the consensus of a supermajority, i.e., the approval of three-quarters of the states.

5. Part of Roe v. Wade is good—recognizing a woman’s right to privacy. The idea that every part of Roe v. Wade could be or would be overturned is ridiculous. Remember, Roe v. Wade is a very complex case. Up to this point, I don’t ever recall a serious political discussion about what part of Roe v. Wade one would or would not want to overturn. The woman’s right to privacy—the right to control her own body—that will never be over-turned. That part of Roe v. Wade is laudable. But it would be good for the law to acknowledge the existence of a fetal right to continue living that would have to be weighed against a woman’s right to control her body. Extinguishing the fetal right to life was the most opprobrious part of Roe v. Wade. It should be restored, and such a restoration would mean that the right to an abortion would not be an absolute—it would have to be weighed against the fetal right to life. In summary, if Roe v. Wade ever were to be “over-turned,” it would only be one or two aspects of that ruling that would be changed. Possible changes could include: (a) returning the abortion issue to the states; (b) restoring the fetal right to life; and (c) correcting the ruling that a fetus is not a “person.”

The discussion about what parts of Roe v. Wade should be overturned and which should remain would be an important discussion. I welcome it. Parts of Roe v. Wade should be overturned. But those who cling to abortion as the sacrament of their political religion—they don’t want the discussion. They do want to turn the debate into a health issue—but it is not.

There are multiple types of support for the “right to life.” But not all “right to lifers” have the same beliefs and principles about whether abortions are ever justified, and about what conditions might justify an abortion. In the rare instances where abortion would preserve a mother’s life, it would be acceptable. It may be proper in the case of certain severely deformed babies. And it may be allowable in cases of rape or incest—because in those cases a pregnancy was forced upon a woman against her will. Recognizing and addressing these various competing rights would not be easy or convenient. Extinguishing a fetal right to life does simplify the administration of the law—but that law is cruel, oppressive and barbaric. Correcting this serious flaw would require overturning part of Roe v. Wade. But that’s okay—it would be an improvement.

It appears that the McCain/Palin ticket supports changing our law to give the unborn greater protection than is currently afforded under Roe v. Wade. This would be good. But it need not prohibit ALL abortions. I heard that McCain was once quoted as having stated such a position, but I do not support that absolutist position, and I do not believe it would ever become law.

The taking of human life is a serious matter. Protecting those who are most helpless and vulnerable is critically important. If the Democrats want to debate whether or not Roe v. Wade should be overturned—I welcome the debate.