1. INTRODUCTION: Laying the Groundwork for a Legal Challenge.
2. The Original Legal Mind
3. Constitutional Parallels
EPILOGUE: Judicial Craftsmanship and the Legal Challenge.
1. INTRODUCTION: Laying the Groundwork For a Legal Challenge
A legal challenge to Roe v. Wade
is a work of judicial craftsmanship, and is almost wholly the work of an
original legal mind: the lawyer who prepares and presents the case. Contrary to
a common impression, the justices of the Supreme Court are merely judge
and their decisions are wholly dependent upon the cases as presented by the
conflicting parties. In fact, the law and court procedure forbids them to pass
judgment on any issues not presented to them in actual cases. The preparation
and presentation of a case, then, are critical and even decisive in the outcome
of a case.
Just to give two examples. in the preparation for his presentation in
Gibbons v. Ogden, Daniel Webster spent three years preparing his arguments,
preparing for this case with the same thoroughness with which he had prepared
for two previous landmark cases: Dartmouth College v. Woodward and
Mc'Culloch v. Maryland. In all three cases, but particularly in Gibbons
v. Ogden, new principles of constitutional law were laid down which became
precedents in their own right in future cases. Webster was noted for the intense
preparation he gave to each case and for his massive knowledge of constitutional
The second example is that of Louis Brandeis in
Muller v. Oregon, which changed the whole direction of the Supreme Court
and of American law in the 20th century. In preparation for the case, Brandeis
collected empirical data from hundreds of sources, gathered into his famous
Brandeis Brief, which became the model for future Supreme Court
presentations. Two weeks before his presentation of the case before the Supreme
Court, Brandeis checked into the Harvard Club in New York, locked himself in his
room and put all of his facts together by intense concentration on the material.
His success in the case went contrary to every previous decision of the Court,
making "workers' rights" part of the national vocabulary and part of
As in these pivotal cases, Roe v. Wade opened a whole new dimension in
constitutional and statutory law: the question of the unborn, demanding in those
who challenge that decision a thorough knowledge of the major decisions in
Supreme Court history. Those major decisions brought the Constitution to bear
upon problems never before faced by the courts and the necessity to draw from
the Constitution itself an application of its principles in new and
unprecedented ways. It is in those landmark and pivotal cases that parallels to
abortion are to be found, as new applications of constitutional law reveal how
the Constitution applies to concrete cases.
The solution to the abortion question is not to be found in amicus curiae
briefs in cases of abortion coming before the Supreme Court, but in challenging
the practice of abortion in the courts in concrete cases in which constitutional
principles are being violated. The parallels for this challenge are found in
Constitutional history itself.
The basic premise of the abortion question is that, legally and
constitutionally, it is uncharted territory. There are no direct precedents to
draw upon and no legal authorities to appeal to. There is only the text of the
Constitution itself and its interpretation by the courts over two hundred years,
embodied in those cases and decisions that have marked Supreme Court history.
The raw research needed to resolve the question legally has not been done, and
the foundational work to uncover the issues involved is totally lacking.
What the Catholic legal community has attempted, in its amicus curiae
briefs, is to use the courts and the judicial process to further the Catholic
position on abortion, in other words, to proselytize in the courts. That is
precisely the reason why its efforts have not been taken seriously and why the
court has turned a deaf ear to such briefs. No religious body may use the courts
or the federal government to proselytize and such an effort is, in fact,
contrary to the constitutional principle of the separation of church and state.
Any opposition to abortion in the courts and in the public arena must be,
first of all, a constitutional opposition, based on principles
enshrined in the Constitution of the United States, on precedents in
constitutional law and on rights which the Constitution was fashioned to
secure and protect. Any other effort is not only doomed to failure, but is
ultimately counterproductive. This is something that the pro-life legal
community has consistently failed to recognize, and has attempted instead to
carry on a public relations campaign rather than a constitutional challenge.
The judicial material for a legal challenge is to be found in the briefs and
oral arguments of past Supreme Court decisions, in particular, those cases that
are considered the major decisions in Supreme Court history. This material is
vast, abundant, illuminating and instructive, throwing light on the judicial
process and the chemistry of Supreme Court decision-making. These cases
demonstrate how a foundational base is laid in presenting concrete cases,
what are the rules of evidence recognized and accepted by the Court and the
reasoning process that enters into a Supreme Court decision.
What is also revealed in a careful study of this material is how the legal
mind works in laying bare the exact terms of a conflict, and how the terms of a
conflict are brought before the Court. The effect of such legal reasoning on the
hearers, in a successful presentation of a case, is indicated by the words of
Joseph Story in McCulloch v. Maryland, after listening to a presentation
by William Pinkney: "Mr. Pinkney rose on Monday to conclude the argument; he
spoke all that day and yesterday, and will probably conclude today. I never, in
my whole life, heard a greater speech ... His language, his, style, his figures,
his arguments, were most brilliant and sparkling. He spoke like a great
statesman and patriot, and a sound constitutional lawyer."
There is no doubt that the groundwork for any legal challenge in the courts
must be based upon a total familiarity with actual cases brought before the
Court in its two hundred year history, for it is here that the mechanics of a
legal challenge are to be found. These cases also demonstrate why and how good
cases are lost and how constitutional principles apply in specific cases.
The idea that abortion as a constitutional question has been settled by the
legal reasoning of Roe v. Wade is a false assumption based on a total
unfamiliarity with the history of the Supreme Court. It is legal reasoning
that changes the direction of Supreme Court decisions and it is legal
reasoning that convinces justices that a previous decision must be
overturned. It is the ability to draw such reasoning from the facts of a case
and from previous decisions of the Court that makes the difference in presenting
a case. The best proof of this is the huge number of Supreme Court decisions
decided by a 5-4 vote of the justices.
It is the contention of this Prospectus that the foundational work necessary
for overturning Roe v. Wade has not been done in the over 25 legal
arguments that could challenge that decision. Nor are the legal arguments
limited to these. These arguments are to be gleaned from the history of
constitutional law, from the major decisions of the Supreme Court and from the,
empirical and legal, factors of the abortion question.
2.The Original Legal Mind.
An original legal mind appears, only once or twice in a generation, in the
person of a Webster, a Story, a Lincoln, a Harlan, a Holmes, a Brandeis or a
Cardozo. It is original in that it pioneers a breakthrough in legal reasoning, a
giant leap forward in the facing of some critical constitutional question, or in
working through the implications of a basic constitutional principle. The legal
breakthrough is unprecedented and unexpected, in direct contradiction to the
accepted legal doctrine of the time. It is opposed and even ridiculed, since it
challenges certain assumptions that have become the common property of the legal
community. The prime example in our century is Louis Brandeis, who,
single-handedly, created a whole new tradition of constitutional law.
The major example in constitutional history is John Marshall, who, in a
series of classic Supreme Court decisions, created a federal judiciary and a
body of constitutional doctrine that extended the Constitution into the social
fabric of American life and into the mainstream of American concerns.
Breakthroughs in constitutional law have been the work of lone individuals, who
recognized a problem in human relations crying for a solution, with no
ready-made solution easily at hand.
There is no ready-made legal solution to the abortion question, but this has
been true of every constitutional question that has ever arisen. The solution,
when it comes, is deeply personal and highly original, made up of elements
obvious to no one else at the time, one has only to read the fierce opposition
of a Thomas Jefferson to the Supreme Court decisions of John Marshall, or the
mind-set of Stephen Douglas in the Lincoln-Douglas Debates, or the opposition of
the corporate community to the legal doctrine of Louis Brandeis, to realize the
originality of their solutions. But without these breakthroughs, American
constitutional law, as we understand it, simply would not exist.
In every case, the foundational work required was massive, extensive, opening
new avenues of constitutional thought and worked into a unity with remarkable
clarity and compelling logic.
But this clarity and compelling logic did not constitute the genius of their
solutions. It was their embodiment in the concrete empirical facts of a
particular case, or series of cases, that constituted the breakthrough and the
touchstone of their legal genius. In many cases, one can pinpoint the historical
moment that sparked that particular legal mind into action, when that mind began
to formulate the beginnings of an original constitutional solution.
For Brandeis, it was the Homestead strike of 1892 that brought about a
seismic change in his legal outlook as he faced a totally new dimension in human
relations. "It was the affair at Homestead", he wrote later,
"which first set me to thinking seriously about the labor problem. It took the
shock of the battle, where organized capital hired a private army to shoot at
organized labor for resisting an arbitrary cut in wages, to turn my mind
definitely toward a searching study of the relations of labor to industry."
He recognized the inadequacy of an inherited legal doctrine to face the new
human problem. The result was the creation of a totally new solution. "One
morning the newspaper carried the story of the pitched battle between the
Pinkertons on the barge and the barricaded steel workers on the bank. I saw at
once that the common law, built up under simpler conditions of living, gave an
inadequate basis for the adjustment of the complex relations of the modern
factory system. I threw away my notes and approached my theme from new angels.
The "Brandeis Brief", which brought his "new angles" into a
concrete case argued before the Supreme Court changed the whole course of
constitutional law in the 20th century. With his own appointment to the Court in
1916, with fierce opposition from the industrial community, his solution began
to influence the Supreme Court itself.
In every major development in constitutional adjudication, an original legal
mind has brought new angles into a concrete case involving fundamental
rights, new angles that had not been recognized before or had not emerged
through historical development. In the early stages of the nation, after the
Constitution had been ratified and the Supreme Court had begun its work of
applying that Constitution to growing developments, these new angles
multiplied rapidly, as constitutional principles began to be applied to every
aspect of American life, not without controversy and not without intense debate.
That debate produced the precedents which have become the backbone of
American constitutional law and upon which the judicial system has drawn in
In every major case, these Supreme Court decisions were divisive, since they
encroached upon the interests' of certain persons or certain classes of persons
and limited their power over others, enshrining in the law itself the rights
of individuals whose rights were not previously recognized by law. The cases
themselves arose because of some crisis in American life, some conflict of
rights, in which whose fundamental right was being violated was not clear,
and for the solution of which a court decision had to be made.
In every case also, it was some new angle, unrecognized before,
but clearly an integral part of the Constitution, that provided the resolution
of the case and became part of constitutional history and of constitutional law.
Moreover, the new angle was unprecedented, violently attacked and vehemently
denied in the public forum and in legal journals.
Sometimes it was long-established custom or practice that was the issue, such
as slavery, segregation or child labor; sometimes it was a new issue that
emerged from the economic or political life of the nation, such as workers'
rights or womens' rights, sometimes it was an issue that emerged from some
concrete event, such as the New York Times libel case, or the flag-burning
incident of recent years. In each case, constitutional principles were brought
to bear upon the issue, not without intense public debate.
Often, on the surface, the issue seems to be a political one, a conflict
between states' rights and federal jurisdiction, between social groups or
political parties, between North and South or capital and labor, liberal and
conservative, Blacks and Whites. But at bottom, there are constitutional issues
involved, a conflict over individual and personal rights, rights enshrined in
and guaranteed by the Constitution of the United States, demanding a new hard
look at that Constitution and its application to concrete historical
And in every case, the issue is resolved by litigation. "The Constitution's
continuing strength, flexibility, and vitality stem from the fact that the
Supreme Court, since its inception, has felt compelled - by virtue of the
justices' oath to see that justice is done - to give meaning to the general
phrases of the Constitution. Given the presence of a legitimate case or
controversy... the justices of the Supreme Court have, in the words of Marshall,
'expounded' upon the meaning of the general terms in 'response to life and
experience' . Litigation is vehicle by which the fundamental principles
rooted in our Constitution are "given content and relevance in each generation…
Constitutional adjudication is the genius of our democracy and it's
Debate in the public forum has its place, but it is not public debate that
resolves the issue constitutionally and legally. It is constitutional
adjudication and the introduction of new angles into the debate, new
angles that are seen to have bearing on the Constitution itself and on the
rights guaranteed by the Constitution. The public debate often reduces the issue
to class warfare, a controversy between political factions, a battle on social
or economic issues. It is only when the public debate has entered the courts
that the real issues emerge and are clarified, and that a judgment is made on
whose rights are being violated. Until the issue enters the courts by
litigation, sometimes massive litigation on a national level, the constitutional
issues and the public debate remains unresolved.
3. Constitutional Parallels.
The constitutional parallels for a legal challenge to Roe v. Wade are
cases that have made constitutional history, were vigorously argued when they
were presented to the Court and became the foundation stones in the development
of constitutional law. What these cases did was to take key concepts of the
Constitution itself, such as commerce, regulate, person, right, power,
provide, and determine their exact application in concrete cases, extending
the concept to new times and circumstances.
In almost every case, in those cases that were landmark decisions of the
Court, the concepts were interpreted expansively, and opposed a narrow
interpretation of the terms.
In these major cases, those who lost the cases, argued for a narrow
application or designation of the constitutional term, for the sake of some
private interest or claimed right. This application or designation was
ultimately rejected by the Court.
What all of these cases demonstrate is that the words commerce, person,
power, right, regulate, provide, as used in the Constitution, have a broad
meaning and are not to be interpreted in a restricted and narrow sense. When
legal reasoning cogently demonstrates that such a narrow and restricted meaning
is being used to support a claim or defend a position, that claim has been
rejected by the Justices. That is one of the lessons to be learned from these
The appeal to precedent in Supreme Court adjudication refers not only to
Supreme Court decisions, but to the form of legal reasoning as well, the
manner in which constitutional concepts are understood, and the method
by which decisions are reached. Not to understand this is a form of legal and
The groundwork for a legal challenge to Roe v. Wade must be laid in
these constitutional parallels, since there are no direct precedents in
constitutional law directly bearing on the question of abortion. It is true that
it was the moral outrage in the face of slavery and the
decision that brought into focus the constitutional issues involved in
the issue of slavery, just as it was the moral outrage and the social
embarrassment of segregation that led to the outlawing of segregation by
Brown v. Board of Education. But it was the constant litigation on these
questions that brought out the constitutional principles involved, that
demonstrated how such principles apply in concrete cases, and what forms of
legal reasoning convince the Court. In the adjudication of all these major
cases, the foundational work was critical and massive.
It is the thesis of this Prospectus that the foundational work for resolving
the abortion question constitutionally and for overturning Roe v. Wade
has not been done. The solution to the question is to be found in the
Constitution itself and in those Supreme Court decisions that have extended the
Constitution into the fabric of American life. The parallels and precedents are
there, the raw material for overturning the Roe v. Wade decision. This
Prospectus provides a blueprint for overturning that decision and enshrining the
rights of the unborn in the very fabric of constitutional law.
"Like all appellate courts, the Supreme Court is bound by the facts already
developed from the testimony and information presented in the lower court
JUDICIAL CRAFTSMANSHIP AND THE LEGAL CHALLENGE
Judicial craftsmanship recognizes that the law itself is sometimes
responsible for evils in society and that the law itself must play a part in the
eradication of those evils. That is the legal chemistry behind the reversal of
Supreme Court decisions. The first step is to recognize the legal chemistry that
brought about certain decisions and the legal flaw in that chemistry that
supported, defended or upheld the decision.
In this, we are not concerned with the question of abortion itself, as a
moral and religious issue, but about the legal support given to the practice of
abortion by the Roe v. Wade decision of 1973, together with the "abortion cases"
that have followed on that decision. What must be demonstrated, on legal and
constitutional grounds, is that the Roe v. Wade decision contradicted
definite constitutional principles and is in reality, not a work of legal
craftsman ship, but a legal and constitutional monstrosity.
The conviction that abortion is morally evil is not enough; it must also be
demonstrated that it violates established constitutional principles.
The history of the abortion question, as a legal and constitutional matter,
is found in historical sources that predate the Constitution of the United
States, as well as in those writings and decisions that mark the development of
American jurisprudence. That history has its beginnings in the commentaries and
scholarship of James Kent and Joseph Story, who brought into the American
experience, with its revolutionary concept of law and government, the
precedents, legal reasonings and judicial decisions of a vast European tradition
of law. The body of legal reasoning in their Commentaries and Digests
demonstrates an historical transition from European to American law at its very
source. It also provides a model for any further developments in American law.
That development is marked by radical departures from the European tradition,
in the American constitution itself and in the major decisions of the American
courts. The unique character of American law, with its firm foundation in
individual rights and in the powers of government proceeding from the people,
affected every major conflict that came before the courts. The abortion question
is no exception and Roe v. Wade could mark a development in American law
as significant as the major decisions of the Marshall court and the issues of
slavery, segregation, women's rights and child labor. It is the work of legal
reasoning to lay the groundwork for that development.
In the American legal tradition, "the source of judicial authority (is) the
process of judicial reasoning.... reasoning illuminate(s) the fundamental
principles of American government".
The Roe v. Wade decision was decided by a plurality of opinions, not
by a unanimous decision of the Justices, and this is even more true of the
Casey decision. This indicates a division in the Court itself, a division
that can be overcome only by legal reasoning and careful judicial craftsmanship.
In Casey, Justice Rehnquist stated in his dissent: "We believe
that Roe was wrongly decided and that it can and should be overturned",
and that the Court "was mistaken in Roe when it classified a
woman's decision to terminate her pregnancy a fundamental right."
Justice Scalia in his dissent in Casey stated that "liberty
finds no refuge in a jurisprudence of doubt". and observed
even more strongly that "Roe created a vast new class of
abortion consumers and abortion proponents by eliminating the moral opprobrium
that had attached to the act.
What is clear from the
well as other abortion cases following on Roe v. Wade, is that
even the Supreme Court is divided on the issue of abortion and that no clear
legal reasoning has emerged to clarify on accepted constitutional principles the
real issues in the case. The issue is ripe for new and original thinking
on the question and for a clear articulation of the constitutional principles
wrapped up in the case.
What is emerging in the legal debate is that the categories used in the past
to resolve constitutional questions and human rights violations have no bearing
and simply do not apply in the question of the unborn. It is a totally new
category of constitutional law and the fundamental right involved requires the
fine scalpel of legal reasoning to isolate it from the other issues that
surround the question. What has been reached is a watershed in constitutional
history and a conflict of interests that are not easy to disentangle. But that
is what judicial craftsmanship is all about and it is that very conflict that
constitutes the judicial challenge.
The precedents are there, not only in the pioneer craftsmanship of a
Marshall, a Harlan or a Brandeis, but in the other watershed cases in
constitutional history: Marbury v. Madison, McCulloch v. Maryland, Gibbons v.
Ogden, Pennington v. Coxe,
Plessy v. Ferguson, Lochner v.
New York, Muller v. Oregon,
United States v. Darby, Brown
v. Board of Education, and hundreds of others that demonstrate how the
Constitution of the United States applies to concrete cases and to ongoing
conflicts of the American people. It is from these patterns, parallels and
precedents that a legal challenge to Roe v. Wade is crafted, a task that
still remains to be done as the conflict continues.
Part of the legal entanglement is that legal reasoning in the abortion
question sees only a woman's fundamental right at issue, or only the unborn
child's. There is no legal concept to embrace the fact of divided
dominion, as in the Law of Bailments, where the rights of two parties are
involved. Constitutional law has never had to consider the question of divided
dominion, where two rights are intertwined, or to define the constitutional
relationship of the two. For this "new angles" and new concepts are needed and a
kind of judicial craftsmanship that has long been absent from the Court. It took
a Louis Brandeis to convince the Court that "liberty of contract" was not the
issue in the conflict between capital and labor, but just wages and just working
conditions, that the rights of capital were not absolute and did not include the
right to exploit the worker. A similar kind of reasoning is needed in the
abortion question that does justice to a very unique relationship, more intimate
and inter-woven than the relationship of employer to employee, and more
destructive in its consequences when that relationship is not carefully defined.
The task is, first of all, one of judicial craftsmanship, in which a
first-class legal mind dissects with the scalpel of legal reasoning all the
pertinent elements of a concrete case, linking it with past decisions of the
Court and aligning it with those constitutional principles and concepts imbedded
in the very text of the Constitution. "We, must never forget",
wrote John Marshall, "that it is a Constitution that we are
expounding." That this has not been done by the pro-life legal community is
evident from the arguments and legal briefs that have been presented to the
Court. That such legal craftsmanship is possible is the main point of this
Prospectus and that this is the legal solution to the question of abortion is
the chief conviction of this paper.
New Perspectives on the Defense of the
Unborn as a Constitutional Issue