But back to the terms. Most people know what a "penumbra" is. And liberals can find anything they want there to justify whatever their latest draconian power play involves. But what the heck does it mean to "immanentize the eschaton?" What's the eschaton anyway? I had to look it up myself. It's a theological term that refers to the end times, the four last things: death, judgment, heaven or hell. To immanentize the eschaton means to try to bring about the Utopia here and now, by human means. Talk about arrogance of those whom Satan advises, "can be like unto God." Human-made Utopias! it's been tried before and history shows that it always ends in tyranny and massacre.
Nevertheless, Utopian liberals lay out their godlike schemes unrelentingly? They're going to "build back better," create the "great society," eliminate poverty by destroying the family. They kill babies to protect "reproductive rights." They legalize medically assisted suicide to eliminate pain (and useless eaters). They destroy the economy to save the planet. They turn us into wage slaves on their liberal plantation so they can use our money to buy votes with their free cell phones and COVID handouts?
How do you like the utopian eschaton Joe and his cohorts are creating for us? Did you read Susan's post yesterday about Joe's latest appointment to the White House freak show?
Roe v. Wade helped to define the eschaton being immanetized by liberals when Blackmun/Brennan wrote, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That includes making up 100+ pronouns to define oneself. Of course no one will have the slightest idea what you are talking about when you call yourself ze/zir/xe/ne/ve/.... whatever...whoever! Questions that naturally arise in the face of this insanity are these: "Is that the name of the demon possessing you? Is it his affectionate name for you as he invades every corner of your mind, passions and will? Do you need an exorcism?"
As Gerry Bruen points out, Scalia mocked the "sweet mystery of life" passage that "ate the rule of law." Exactly! And liberal politicians and judges have gorged on it now for decades until the Constitution has become as malleable in their hands as slime. "Truth and morality be damned," indeed! But, Gerry explains it all better than I can, so I'll turn this blog post over to him with a thank you and a prayer for Roe's demise! And let me put in a plug for Culture Wars Magazine which is well worth reading.
Decided in an era when Supreme Court Justices were rationalizing their decisions by searching “penumbras” that were “formed by emanations from” explicit constitutional guarantees, the 1973 decision in Roe v. Wade created a constitutional barrier to state action to protect human life. We can envision the Roe majority not in conference but in séance, searching penumbras and emanations to locate a basis for their decision. Not all Justices were impressed when the decision issued, a disquiet shared by some of their successors. Years later Justice Clarence Thomas would hang a sign in his chambers: “Please don’t emanate in the penumbras.” And the search goes on. Is that right to abortion based on privacy? Equal protection? Gender equality? Liberty? Autonomy? Something else? After all, penumbras by definition are only partially illuminated; they are shadowed and shady. The best explanation continues to be that of Justice Byron White in dissent: the establishment of a constitutional right to abortion was no more than “an exercise of raw judicial power, … an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
In the immediate aftermath of Roe v. Wade, I was a law clerk to a federal district court judge in Boston. A naturalized citizen born in Italy, he was a practicing Catholic. He was assigned to a three judge panel hearing a case filed by Bill Baird challenging a Massachusetts statute requiring parental consent for an abortion on a minor. The appellate judge on the panel was a Boston Brahmin, who the Associated Press once noted was “a member of one of America’s old, wealthy families.” The other district court judge was Jewish, a former mayor. From the moment the panel was named, the attorneys for the parties likely realized what the vote would be. In chambers, the only question was whether there would even be a trial. The other two judges wanted to rule on the filings without testimony, but relented after my judge threatened a scathing dissent if they did so.
On the first day of the trial, the other two judges and their law clerks were already in the vesting room when my judge entered with me carrying his robe. Uncharacteristically, the three judges immediately went at each other sharply before realizing the law clerks were still present and excusing us. During trial a law clerk for the other district judge was recused when his hallway discussions with counsel for the plaintiffs led to a job offer. After trial, the court issued its 2-1 ruling enjoining enforcement of the statute, but the dissent was based on a fuller record than would have existed in a summary proceeding. The case later resulted in two Supreme Court decisions.
On December 1, 2021 the Supreme Court heard argument in Dobbs v. Jackson Women’s Health Organization, the case challenging Mississippi’s ban on abortions after 15 weeks’ gestation. Assuming the Court followed its usual practice, the Justices then met two days later to reach a preliminary decision about its outcome. Before the Court issued its procedural ruling on December 10 in Whole Woman’s Health v. Jackson, the challenge to Texas’ statute that prohibits abortion after a fetal heartbeat is detected, the Justices knew with almost complete certainty what the ruling on the merits in Dobbs will be (though there’s always a possibility that a Justice’s vote could change as they draft opinions). The opinions in Whole Woman’s Health therefore provide a window into what will occur in Dobbs, especially when coupled with the statements of the Justices at oral argument in Dobbs.
In broad terms, Dobbs could reaffirm Roe, overturn it, or limit its application. Mississippi has asked the Court to overturn Roe, but if that is not done, to uphold its ban on abortions after 15 weeks of pregnancy, which would limit Roe and perhaps green-light other limitations
What is abortion and why should it be banned or limited? The answer is straightforward, but hardly ever mentioned. Abortion is the direct intended killing of a human being in the womb. Abortion is murder in the womb. Why is this obscured? Why the obfuscation?
President Joe Biden, for example, says “I respect them, those who believe life begins at the moment of conception and all, I respect that. Don’t agree, but I respect that.” Why do you disagree, Joe? When does a human life begin if not at the moment of conception when 23 chromosomes from a man’s sperm and 23 chromosomes from a woman’s egg unite? That union results in a living human being—a human who exists, who has being. There is no other marker for the beginning of a human life, no other point where something that is not a human being suddenly becomes one.
Similarly, while questioning the Solicitor General of Mississippi during oral argument in Dobbs, Justice Sonia Sotomayor called the question of when a life begins a religious issue:
“The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it, because it assumes that a fetus’s life at—when? You’re not drawing—you’re— when do you suggest we begin that life? Putting it aside from religion.”When do you say a human life begins, Justice Sotomayor? What’s religion or philosophy got to do with that question? Hasn’t science established that it begins at conception? Barack Obama famously smirked that the answer’s “above my pay grade.” Are you too pleading ignorance?
Though no one can validly dispute the science on when a human life begins, religions differ on whether the child in the womb may be killed. This was captured vividly when Sarah Marian Seltzer, executive editor of Lilith Magazine, recently tweeted “a friendly reminder that banning abortion violates Jewish women’s ability to practice our religion.” Does that make it anti-Semitic to oppose aborting Jewish babies? If a religion were to allow ritual child sacrifice, rape of children, genocide, or any number of other moral atrocities, no court would allow those practices on the ground that a difference of opinion among religions renders it a religious question. Much less would it enshrine those practices in the Constitution. Jewish acceptance of abortion is no reason to enshrine murder in the womb, nor a bar to banning it.
During the 2020 hearings on Justice Amy Coney Barrett’s nomination to the Court, Sen. Amy Klobuchar, an abortion advocate, grilled Barrett about a law review article she had written listing seven Supreme Court cases generally viewed as “super precedent,” including Marbury v. Madison, the 1803 decision that established the principle of judicial review pursuant to which courts can strike unconstitutional laws, and Brown v. Board of Education, the 1954 unanimous ruling that racial segregation of children in public schools pursuant to laws requiring or permitting it was unconstitutional, in effect overturning the 1896 decision in Plessy v. Ferguson, in which the Court had reasoned that facilities could be segregated as long as they were equal. Klobuchar wanted to know how Barrett would define super precedent. As defined in scholarly literature, Barrett replied, it means cases that are so well settled that no one calls for them to be overruled. Roe v. Wade “doesn’t fall in that category” because there are still calls for it to be overruled, she said.
Brown v. Board of Education was a controversial decision, in part because it infringed on the political and legislative process by writing new law. But that controversy has died with the passage of time. One way to view Brown is: the political and legislative process had run its course for years without remedying the affront to human dignity inherent in racial segregation, and it showed no promise of remedying it in the immediate future, so the Court stepped in. How is this different from the exercise of raw judicial power in Roe? Perhaps it’s not. So why is there no longer a call to overrule Brown while there is a constant clamor to overrule Roe? Probably because segregation was a violation of the moral order that the Court remedied, while a Court imposed constitutional right to abort a child is an affront to the moral order. Brown was congruent with the moral order, Roe is antithetical to it. And, as Archbishop Salvatore Cordileone pointed out, “segregation … is not as bad as lynching. … Well, abortion is at the same level of lynching because they both involve the killing of innocent human beings.”
Justice Neil Gorsuch wrote the majority opinion in Whole Woman’s Health. Chief Justice John Roberts and Justice Sotomayor each penned dissents that shed some light on the future of Roe. And although Sotomayor joined in Roberts’ dissent, he did not sign on to hers. There is no question that the Texas restrictions on abortions that are before the Court in Dobbs must fall if Roe and Casey are applied. On the question of whether Roe will be further limited or overturned by Dobbs, caricature of the opinions of Gorsuch, Roberts and Sotomayor in Whole Woman’s Health can best capture their gist.
Justice Gorsuch for the Court: The ultimate question of whether the Texas statute violates Roe and Casey is not before us, though the Court previously refused to enjoin its enforcement while the merits are addressed below—and wink, wink, Dobbs will change the law in this area before the merits ever get to us. When we issue the decision in Dobbs, it will allow greater state regulation of abortion, meanwhile you can go spin your wheels in Texas state courts and the lower federal courts (Thomas would have barred access to those federal courts). You’ll have to wait to see whether the statute passes muster under Dobbs.
Chief Justice Roberts in dissent, joined by Justices Sotomayor, Stephen Breyer, and Elena Kagan: Today Roe and Casey are the law of the land. The purpose and effect of the statute is to nullify this Court’s rulings in those two cases. The very role of the Supreme Court in our constitutional system is at stake. Apply the law as it stands at the moment. The question of whether Dobbs will undercut or overturn Roe and Casey in the future is irrelevant. So, don’t take this dissent as a harbinger of my vote in Dobbs, but note that I’m not buying into Sotomayor’s dissent.
Justice Sotomayor in dissent, joined by Justices Breyer and Kagan: In open defiance of this Court’s precedents Texas has suspended the constitutional guarantee of a pregnant woman’s right to control her own body. The Court should have put an end to this madness before now, and it fails again today. The Court has betrayed our constitutional system of government. In its finest moments, this Court has ensured that constitutional rights cannot be nullified by the states, but it shows no such courage today. There’s no way in hell we three are going to vote to weaken or overturn Roe.
Most of the questions and argument at oral argument in Dobbs focused on stare decisis, the legal doctrine that a court should adhere to precedent—in this situation, Roe v. Wade. Sotomayor was the most forceful of the Justices in defending its applicability; Thomas, Alito, and Kavanaugh the most dismissive of its applicability; and Roberts the most perplexed. On the abortion issue, Thomas repeatedly asked “what constitutional right protects the right to abortion”? “Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?” Kavanaugh suggested “the fundamental problem” is that “you can’t accommodate both interests. You have to pick” between “the interests of the pregnant woman and the interests of the fetus.” And implied Justice Alito “the only real options we have are to reaffirm Roe and Casey as they stand or to overrule them in their entirety.”
No one, though, explicitly alluded to the horror of killing an unborn child. Mississippi’s Solicitor General came closest, referring to “the purposeful termination of a human life,” and noting that Roe will “take enumerable human lives unless and until this Court overrules it.” But when Sotomayor asked him when a human life begins, he fumbled the answer badly:
I think this Court in Gonzales pretty clearly recognized that before viability, we are talking with unborn life with a human organism. And I think the philosophical questions Your Honor mentioned, all those reasons, that they’re hard, they’ve been debated, they’re—they’re— they’re important, those are all reasons to return this to the people because the people should get to debate these hard issues.
Sotomayor also asked whether the Supreme Court could “survive the stench” overturning Roe would “create in the public perception that the Constitution and its reading are just political acts?” What rhetorical blather. The prestige of the Court has not survived the stench created by Roe’s pretense that the Constitution contains a right to murder children in the womb. The Dobbs plaintiffs have asked the Court to overturn Roe or, failing that, to limit its effect by upholding the state statute. The sense one gets from reading the decision in Whole Woman’s Health and the oral argument in Dobbs is that there are five votes to overturn Roe, three to uphold it, and Chief Justice Roberts wishing this would all just go away. Upholding the Mississippi law but not overturning Roe would be Roe lite. If the Court says the Constitution permits the states to ban a greater number of abortions but nevertheless prevents them from banning some abortions, the stench may seem to lessen but it will continue. The Court would still be exercising raw judicial power and playing with the definitions of existence and of the mystery of human life. And as interpreted, the Constitution would still protect murder and murderers.
Pray that the Justices of the Supreme Court will have the wisdom and courage to overturn Roe v. Wade. But even that would leave a serious problem. It may cleanse the Constitution and obviate the stench emanating from the Supreme Court, but it will also expose a failure of the American republic and its democratic system. In Dobbs Mississippi has made the case for “overturning Roe v. Wade and returning decisionmaking about abortion policy to the people,” says Lynn Fitch, the state’s attorney general. If Roe is overturned, the political fight over abortion will be redoubled because individual states and indeed the federal government will nevertheless be able to permit and protect abortion, fund it, and encourage it. And therein lies the problem: “the people” have no right to legitimize murdering children.
This article first appeared in Culture Wars Magazine and is reprinted here with permission.
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