The radically pro-abortion credentials of Elena Kagan were exposed in reports last week, which revealed that she rewrote the American College of Obstetricians and Gynecologists (ACOG) position on partial birth abortion. She did so to the effect that the ACOG's language changed from saying that it could never foresee a circumstance when partial birth abortion would be the only option to save the life or preserve the health of a mother, to language which says that in some circumstances partial birth abortion is the best option. As Yuval Levin reports:
Kagan saw ACOG’s original paper, which did not include the claim that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” but, on the contrary, said that ACOG “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” She wrote a memo to two White House colleagues noting that this language would be “a disaster” for the cause of partial-birth abortion, and she then set out to do something about it. In notes released by the White House it now looks as though Kagan herself—a senior Clinton White House staffer with no medical background—proposed the “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman” language, and sent it to ACOG, which then included that language in its final statement.By promoting Elena Kagan, President Obama is promoting a radically pro-abortion activist with a history of advancing the anti-life agenda. The danger is that Kagan may soon be granted the capacity to interpret law in accordance with her anti-life bias.
US citizens have every reason to fear that Kagan will attempt to use her position as Supreme Court justice to interpret the law in a way which will advance anti-life ends. Kagan has been reported as having described the constitutional interpretation of Thurgood Marshall, the former Associate Justice of the United States Supreme Court as "a thing of glory".
Justice Marshall:
- interpreted the 14th Amendment of the US Constitution (“No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws”) to mean that states were mandated to pay for abortions.
- In 1981 opposed a Supreme Court case that said a physician should “[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is performed, if she is a minor.”
- In 1990 opposed another bill upholding parental notification of abortion of minors. He also opposed the bill because it asked for a 48 hour waiting period before an abortion took place.
US citizens need no reminding of the inherent dangers in anti-life judicial interpretations. It is, after all, thanks to the judical interpretation of Justice Harry Blackmun in Roe vs Wade that abortion is so widespread across the United States. Blackmun interpreted that the "right of personal liberty" in the US Constitution also included a "right of privacy" that was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy". The fact that a "right to privacy" is not explicitly found in the U.S. Constitution and that, even if a right to privacy did exist, there is nothing to suggest that such a right should include the right to abortion, did not stop Justice Blackmun from interpreting that it did.
The danger of an anti-life bias in judicial interpretations has been made all too clear to UK citizens by the recent blunting of the laws against assisted suicide by the Director of Public Prosecutions (DPP). This was acheived by a shift in focus in the new judicial guidelines on assisted-suicide from intention (the suspect's deliberate will to assist the suicide) to motivation (why the suspect assisted a suicide). This undermining of the law makes assisted suicide very different from other serious crimes against the person, where consent to becoming a victim is not accepted either as a defence in court or as a factor against prosecution. Thanks to the DPP's new guidelines on assisted suicide this radical departure from the rule of law will now become the norm in the UK.
The following conclusion by Pietro De Marco perfectly expresses the dangers when individual judges dictate the moral compass of society :
Carl Schmitt saw it well when he wrote that jurists, instead of theologians, legitimize the institutions of modernity, and have the power of the sovereign, that of execution. In global configurations as in social institutions, in anthropology and in bioethics as in the decision over those who govern, a new wave of jurists are acting today who are "revolutionaries," some consciously and some not, and one does not know which is worse. It escapes many analysts that among the perverse effects of late modernity, this is one of the most pernicious.Comments on this blog? Email them to johnsmeaton@spuc.org.uk
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