The Birth of An American Oligarchy

Mark Levin on Roe v. Wade, an excerpt from a lengthy and interesting passage in his new book:

But Blackmun went further, and the Court followed. Not satisfied to strike down the Texas law, Blackmun began to write what seemed to be a new federal statute. According to Blackmun’s opinion, a woman’s right to abortion could only be abridged by a compelling state interest. In effect, Blackmun argued that there was an inverse relationship between a woman’s interest and the state’s interest that ranged across a spectrum from conception to birth. Therefore, the state’s interest at conception was minimal but increased as the pregnancy progressed, reaching its peak at the end of the pregnancy. A woman’s interest, paramount at conception, began to give some ground to the state’s interest in protecting the fetus as it matured toward being able to live outside of the mother. But Blackmun specifically declared that the unborn child was not a “person” under the Fourteenth Amendment, and thus had no equal protection rights.

Blackmun wrote that what really mattered was the unborn baby’s viability outside the womb. A fetus capable of life outside the womb, Blackmun believed, was more deserving of protection than one in its earliest stages of development. He also shot down Texas’s attempt to define life as beginning at conception, which “by adopting one theory of life,” would have then allowed Texas to extend its interest to the earliest stage of pregnancy. Blackmun wrote, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man¹s knowledge, is not in a position to speculate as to the answer.”

Blackmun gave deference to medicine, philosophy, and theology (from his own perspective), but not to the Constitution, the people, the states, or the other branches of the federal government. In truth, Blackmun did establish, at least for constitutional purposes, when life begins by recognizing abortion as a constitutionally protected right to privacy. He did precisely what he lectured should not be done.