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Roe v. Wade as Sacred Text: A Preface and Commentary (Part 1 of 3)

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Each side on the abortion debate has their own sacred text, and the Bible isn't one of them. The two opposing texts are the majority opinion in Roe v. Wade and the United States Constitution. (Editors Note: Three separate articles make up this treatment of the 1973 Supreme Court Decision Roe v. Wade: Part 1 is Roe v. Wade as Sacred Text: A Preface and Commentary Part 2 is Roe v. Wade, the Majority Opinion Commented Part 3 is Roe v. Wade, the Rhenquist Dissent Commented Parts 2 and 3 are a work in progress, with comments being added on a regular basis.)

Like it or not, the United States Supreme Court Decision of 1973 titled Roe v. Wade is practically an immovable fixture in our political landscape. Those who oppose the decision (or perhaps more accurately, what they believe the decision has meant in the history of judicial activism and society's ability to determine how it will treat its most defenseless members) are accused by its defenders of attacking women's rights, or women's reproductive rights, or conducting a jihad or crusade against liberty, and much worse. Those opposing the ruling and argument of Roe v. Wade, or who at least find it deeply and dangerously flawed, find these criticisms of their position strange, because they believe "Roe" (the shorthand for the majority ruling in the decision) technically creates a right to death exercised by others on a child who has no say in the matter, which is the opposite of a genuine right or liberty.

The defenders of Roe will often charge their opponents of being religiously motivated, or, in the more polite discourse they sometimes employ, "Bible Thumping Right Wing Religious Bigots". Those who have been on the receiving end of this tender treatment often marvel at how left wing positions taken by churches (postively referred to a "religious communities" or "faith traditions") are somehow courageous and noble exercises in conscience and religious freedom.  But similar, if not identical, churches become repressive church bureaucracies or patriarchal heirarchies which trample the individual consciences of their own members when they oppose abortion on demand. Perhaps this is why Roman Catholics in America are so confused, not knowing from minute to minute if the next moral pronouncement of their Church will be the courageous voice of a "noble faith community", or the heavy handed dictat of a "repressive patriarchal hierarchy".

There is some truth to the assertion that how one views abortion (and hence the Roe decision) is partially due to religious adherence to a text which is considered sacred. The text in question, however, isn't the Christian or Jewish Bible, or the Islamic Koran. There are, in fact, two conflicting sacred texts. One is the majority opinion in Roe v. Wade. The other is the United States Constitution. It is no doubt true that the Bible also inspires some of those opposed to abortion, but that alone cannot explain the gulf between the two sides. Some opponents to Roe are not particularly biblical in their approach, and some (possibly a small number, but nonetheless they exist) who defend Roe do not consider themselves particularly anti-Biblical in their view.

Even the two texts in question are not enough to explain the divide here, but rather something more is required. The different positions are also the product (or perhaps cause) of two different hermeneutics, which is a fancy (and therefore, either profound or pompous, but bear with the word for a little while anyway) way of saying the two sides tend to interpret their text by a very different set of rules. And hermeneutics, as scholars like to point out, are almost always the product of a community of belief. As noted above, many of the mosts ardent defenders of Roe have speculated on the character of that community of belief to which their opponents belong. So, with the same level of obvious opinonated bias, and in the interest of just plain mischievious fun, what if the overheated rhetorical criticism levelled by the most ardent defenders of Roe were applied to their own position? How would the Church of the Roe Thumping Left Wing Bigots be described, using the mirror image of their own terms? Let's give it a shot.

Roe v. Wade is, for its adherents, their one infallible and inerrant text, their perfect teaching magisterium and Paper Pope, far more important than the Constitution, the Bible, the Koran and the Bhagavad-Gita put together. This effect on them is so strong that they cannot see or recognize actual rights which are in the Constitution and the Bill of Rights (such as in the Second Amendment), but their searing mystical vision can discern rights which are deeply hidden in the most mysterious folds of the Penumbra of the Constitution, rights which no one had found for centuries until Roe v. Wade came along. These are fanatical adherents of a religion so strong it denies the validity of other religions and laws which have existed for centuries in order to extol and enforce on an unwilling society the right they find in Roe v. Wade, that is, the right to an abortion.

As vigorous as their mirror images who formerly ruled Afghanistan, the political wing of the Church of Roe known as the Taliban abortionists in the United States Senate have blocked (and even, as some put it, Borked) nominees to the federal bench without having a majority or even allowing the full senate to vote. The crucifixion of Robert Bork himself (from whence the verbs "to bork" and "borking", that is, to deny a superbly qualified nominee even a vote solely because of left wing intolerance and bigotry) by the Senate Judiciary Committee would not have occurred without Roe v. Wade. The sin for which Bork was crucified was subtle to those outside the penumbra of Roe, but clear to those within it: Bork uttered the blasphemous idea that he saw Roe through the lens of the U. S. Constitution, instead of seeing the U. S. Constitution through the lens of Roe. Those complaining today about the nasty political environment, and the particularly awful situation in which nominees to federal office find themselves, can largely thank the Holy Wrath and Zeal of the Roe v. Wade religionists.

This does not let others entirely off the hook, for politics routinely breeds viciousness on the right, left and elsewhere. But without the Church of Roe v. Wade and its Jihad against the unborn (the English term for "Jihad", "Crusade", would work here as well, but modern crusades, like Billy Graham's, do not actually result in killing innocent people - but pick your own term), the argument would be carried out where it belongs, in the ballot boxes and elected assemblies of the country. This is not to say that, had this happened, the results would have made the pro-life movement uniformly happy. Politics is often a messy business of compromises and smaller steps. But it would have placed that tremendous disagreement in the United States about the right to life (a word which, unlike abortion, is actually mentioned in the founding documents of the country, and numerous state and federal codes) into the hands of the citizens, the states, and the society to resolve in the ongoing democratic due process. Roe v. Wade did what only war has done before: it snatched from a civil and democratic society its ability to determine the most vital aspects of its life, culture, and treatment toward the most defenseless and helpless of its members.

To expand the caracature here, it could be said that everyone talks about Roe v. Wade, but very few people have taken the time to seriously ridicule it. Of course, it could be argued that judges do exactly this when they fictitiously invent new rights and new laws using the text and method of Roe v. Wade to overturn actual laws. This, however, is a form of self-parody, even though it is true that this self-parody has tragic consequences, and has forced such things as same-sex marriage and militant atheist bigotry towards Christianity on millions of unwilling citizens. Roe v. Wade has been criticised, praised, condemned, lauded, hooted, worshiped and reviled. What's left?

There now; that wasn't so hard, was it? But the effort is still somehow unsatisfying. Something is missing, and that thing is the sacred text itself. So, parts 2 and 3 of this treatment of Roe are a modest effort to approach Roe v. Wade combining the best of MST3K and a Medieval Gloss. Both of these require some explanation. MST3K was the marvelously funny Mystery Science Theatre 3000, which for years brought very bad science fiction films to new life by adding the vicious commentary of three very addled but witty commentators (it's easier to see than to describe; go rent or buy the DVD). Medieval glosses are forms of commentary on an original text, which over time could become a beautiful illumination or something so suffocating and overwhelming it smothers the original text it purports to amplify. No claim is made to any legal expertise or knowledge here, and it is recognized that others have done so much better justice to Roe v. Wade than the effort below (perhaps in the vain hope that Roe v. Wade would have done better justice for the unborn).

A disclaimer is also necessary. No particular animus is intended toward lawyers, judges or courts here, or even the supporters of Roe. Disagreement should be far removed from loathing or revulsion, and in fact may be a sign of respect (as Justice Rehnquist phrases it in his dissent). The Law as a field has been populated by some extraordinary and wonderful individuals throughout history. The terrible disease that afflicts them now is not entirely of their own origin. The lab that turned the judiciary of laws into the Frankenstein's Monster of judicial activism and invented imperial fiat had more than one mad scientist. It is true that the judicial activists realized that they could not win at the ballot box or in the legislative assemblies, so they turned willing courts into stooges, and instruments of radical social change. But there were also some - perhaps many - in the legislatures, state houses and in the executive branches who found it covenient to let judges (many of them unelected, and therefore safe from the opinions of citizens) take the heat for deciding very devisive issues. Our current outrageous situation would not be so dire if states, or the congress and the presidency, could nullify or void judicial decisions by a constitutional mechanism similar to that for Amendments, but requiring only a majority of states to concur without the proposal of the congress. No remedy, or course, is perfect, and better ones might be in discussion already. But surely almost anything is preferable to the current chaos, where centuries of established rule of law are overturned by a small group - or even one - judge. So far, the congress has not given us such a remedy, but hope springs eternal.

For those who approach it in non-religious terms, it should be said that Roe v. Wade is a strangely compelling piece of legal writing, at least to those who read for history, and not for the law. It contains an overview of abortion law dating from antiquity to the present, which, if interpreted a little too conveniently, still has kernels of wisdom. The issues are very, very grave here, namely, life, death, and individual liberty and the court makes an effort to deal with them all, even though death would ultimately (at least as history developed) win over both life and liberty, at least for the unborn. The dissent by Justice Rehnquist captures both the eloquence of the decision, and the very troubling and disturbing door that Roe v. Wade opened, namely that privacy and related concepts would be used to destroy the delicate tension and balance between competing rights, duties, and obligations, leaving society, its laws, and its electoral and legislative processes helpless before utopian judicial excess. As Rehnquist put it, The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.*
*Dissent, Roe Versus Wade, 1973.
Dissent, in this case, gives more respect to the court than the majority gives to itself.

As an object of worship, the text of Roe v. Wade is a rather mysterious god, perhaps more like the Oracle of Delphi, which could never give a straight answer. Perhaps the better description is to say that it is an amazingly plastic god, one which changes and metamorphoses into whatever shape the worshipper desires. This protean quality perhaps explains why those who claim so much in the name of Roe v. Wade are hard pressed to find those claims explicitly in its text. But that's perfectly understandable, because Roe v. Wade did much the same thing when it looked at the U.S. Constitution. The majority opinion has, as mentioned above, its own hermeneutic. Failing to find a right to abortion in the text itself, the majority went looking into the penumbra for such a right. That's another way of saying they had to stick their heads in a place where the sun don't shine (penumbra is, technically, the shadow of the shadow). All of us, of course, are tempted to go looking there when we can't find what we want to find anywhere else. That's a bad spot for anyone. When that happens, it's often necessary to use the (appropriately named) Jaws of Life for extraction.

But, decide for yourself if you think the analysis above is right or wrong. Read the text of Roe v. Wade and the dissent in parts 2 and 3. The comments on the text are a work in progress, and will grow and change over time.
The comments are in these text boxes. Ignore them if you like, and just read the decision, and the dissent.

Editor's Note

Three separate articles make up this treatment of the 1973 Supreme Court Decision Roe v. Wade.

Parts 2 and 3 are a work in progress, with comments being added on a regular basis.