The fact that “progressives” in their opposition to constitutional textualists/originalists—whom leftists know approach the U.S. Constitution with more rigorous fidelity than do “progressive” Justices—focus almost exclusively on the possibility that Roe v. Wade may be overturned would seem a tacit admission that there exists no constitutional right of women to have their intrauterine offspring slaughtered. The infamous Roe v. Wade is on the chopping block, and leftists are more distraught over the possible decapitation of Roe than they are over the actual decapitations of tiny humans.

In their frenzied fear that human slaughter may be one day be illegal, leftists fume irrationally that the overturn of Roe threatens the constitutional right of stronger, more developed, and powerful humans (i.e., oppressors) to order the killings of weaker, imperfect, unwanted humans (i.e., the oppressed). Well, here’s some food for thought about Roe v. Wade from “progressives” who support the legal right of women to choose to have more vulnerable humans killed—quotes that shrieking feminists may find wholly unpalatable:

• “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” (Laurence Tribe, Harvard Law School professor).

• “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose” (Edward Lazarus, former clerk to SCOTUS Justice Harry Blackmun).

• What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent—at least, it does not if those sources are fairly described and reasonably faithfully followed” (Edward Lazarus).

• “[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum—will tell you it is basically indefensible” (Edward Lazarus).

• “Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference” (William Saletan, Slate magazine writer).

• Roe “is not constitutional law and gives almost no sense of an obligation to try to be…. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking” (John Hart Ely, clerk for Supreme Court Chief Justice Earl Warren).

• Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.” (Benjamin Wittes, Senior Fellow, Brookings Institution).

• “[T]he very basis of the Roe v. Wade decision—the one that grounds abortion rights in the Constitution—strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy…. As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is. If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe, with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers…. “[Roe] is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument…. Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument—but a bit of our soul as well” (Richard Cohen, Washington Post columnist).

• “Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy) …. [C]lear governing constitutional principles… are not present” (Alan Dershowitz, former Harvard Law School professor).

• “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people…. Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it” (Jeffrey Rosen, George Washington University Law School professor, former clerk to Judge Abner Mikva).

• “Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision…. Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching” (Michael Kinsley, attorney, political journalist).

• “[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result. This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entited [sic] to the protection of the 14th Amendment…. By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values” (Kermit Roosevelt, University of Pennsylvania Law School professor).

• “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution” (Archibald Cox, JFK’s Solicitor General, former Harvard Law School professor).

Roe v. Wade, my friends, is the SCOTUS decision that “progressives” argue absolute fidelity to precedent demands Justices uphold. If they think “lousy,” “indefensible,” “barely coherent,” unintelligible, a-constitutional non-reasoning must be honored in slavish service to the political end of allowing feticide, I hate to imagine what they would have thought about revisiting Dred Scott.

Staci Fox, president and CEO of Planned Parenthood Southeast headquartered in Atlanta, Georgia said this about the Alabama ban on human slaughter: “[T]hese laws are unconstitutional and they [pro-life advocates] don’t care.”

It’s remarkable that the Founding Fathers managed to make clear to “progressives” that women have a constitutional right to have their offspring offed without ever uttering a single word about it in the U.S. Constitution.

Here are some quotes from liberal scholars and writers on Roe v. Wade collected by Timothy P. Carney, commentary editor at the Washington Examiner and a visiting fellow at the American Enterprise Institute—quotes that shrieking feminists may find wholly unpalatable:

• “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” (Laurence Tribe, Harvard Law School professor).

• “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose” (Edward Lazarus, former clerk to SCOTUS Justice Harry Blackmun).

• What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent—at least, it does not if those sources are fairly described and reasonably faithfully followed” (Edward Lazarus).

• “[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum—will tell you it is basically indefensible” (Edward Lazarus).

• “Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference” (William Saletan, Slate magazine writer).

• Roe “is not constitutional law and gives almost no sense of an obligation to try to be…. What is frightening about Roe is that this super-protected right is not inferable from the language of the U.S. Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking” (John Hart Ely, clerk for U.S. Supreme Court Chief Justice Earl Warren).

• Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.” (Benjamin Wittes, Senior Fellow, Brookings Institution).

• “[T]he very basis of the Roe v. Wade decision—the one that grounds abortion rights in the Constitution—strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy…. As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is. If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe, with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers…. “[Roe] is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument…. Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument—but a bit of our soul as well” (Richard Cohen, Washington Post columnist).

• “Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy) …. [C]lear governing constitutional principles… are not present” (Alan Dershowitz, former Harvard Law School professor).

• “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people…. Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it” (Jeffrey Rosen, George Washington University Law School professor, former clerk to Judge Abner Mikva).

• “Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision…. Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching” (Michael Kinsley, attorney, political journalist).

• “[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result. This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entited [sic] to the protection of the 14th Amendment…. By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values” (Kermit Roosevelt, University of Pennsylvania Law School professor).

• “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution” (Archibald Cox, JFK’s Solicitor General, former Harvard Law School professor).

Roe v. Wade is the SCOTUS decision that “progressives” argue absolute fidelity to precedent demands Justices uphold. If they think “lousy,” “indefensible,” “barely coherent,” unintelligible, a-constitutional non-reasoning must be honored in slavish service to the political end of allowing feticide, I hate to imagine what they would have thought about revisiting Dred Scott.

Save these quotes to show your pro-human slaughter friends next time they claim Roe v. Wade is the unchallengeable law of the land and reflects immutable constitutional truths.

Listen to this article read by Laurie:

https://staging.illinoisfamily.org/wp-content/uploads/2019/05/Roe_SCOTUS.mp3

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Conservative friends, if it weren’t clear to you already that the halcyon days for theologically orthodox people of faith in America are over, read the ominous, hostile, and arrogant words of Mark Tushnet, William Nelson Cromwell professor of law at Harvard Law School:

The culture wars are over; they lost, we won…. For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who—remember—defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.

Conservatives are the equivalent of racists and Nazis because they believe human beings whose lives begin at conception have a right to exist and that marriage has an intrinsic nature central to which is sexual differentiation. No more need for politically expedient rhetorical deception about tolerance and diversity. Carpe Diem, Tushnet proclaims. To the victors belong the spoils, which to “progressives” like Tushnet just might include the presumptive “right” to abrogate the religious liberty of conservative losers.

What accounts for Tushnet’s cocksureness? Tushnet makes clear that it derives from the current composition of the courts:

Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives….

It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents…the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.

Now that the judiciary is controlled by liberals, Tushnet argues that “Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided,” and that they should “Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling” [emphasis Tushnet’s].

Tushnet clerked for Thurgood Marshall and was instrumental in shaping and articulating Marshall’s position in Roe v. Wade which, in turn, influenced Harry Blackmun. Tushnet, in a  “significant letter” written for Marshall and sent to Harry Blackmun said this:

I am inclined to agree that drawing the line at viability accommodates the interests at stake better than drawing it at the end of the first trimester. Given the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion, I fear that the earlier date may not in practice serve the interests of those women, which your opinion does seek to serve.

…

It is implicit in your opinion that at some point the State’s interest in preserving the potential life of the unborn child overrides any individual interests of the women. I would be disturbed if that point were set before viability, and I am afraid that the opinion’s present focus on the end of the first trimester would lead states to prohibit abortions completely at any later date.

Professor Tushnet, a prolific writer and non-observant Jew, is the father of Eve Tushnet, a prolific writer and theologically orthodox Catholic who identifies as a lesbian but because of her deep faith, has chosen a life of celibacy. Eve Tushnet was “raised somewhere between atheism and Reform Judaism,” and “entered the Catholic Church in 1998, during her sophomore year at Yale University.”

Is Mark Tushnet’s daughter one of the losers against whom Professor Tushnet seeks a hard line?

The Obama Administration’s executive overreach, criticized even by liberal legal scholar Jonathan Turley, has alerted many conservatives to the imbalance of power between the legislative and executive branches which in theory should be co-equal. “Progressives” are taking their gloves off and putting their jackboots on. They’re hungry and seeking to devour whatever morsels of liberty conservatives yet retain. Perhaps Tushnet’s clanging voice will be the alarm needed to arouse slumbering conservatives before their plate is empty and progressives arrive at our church doors slavering at the cup and gnawing at the host.

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