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Jewish World Review April 18, 2002 / 7 Iyar, 5762

Cal Thomas

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Byron White's life legacy | As one of only two dissenters in the Supreme Court's 1973 Roe vs. Wade case, which ushered in abortion on demand (William Rehnquist was the other), Associate Justice Byron White, who died April 15, wrote words that were as prophetic as they were profound.

White chastised his colleagues who voted in favor of striking down state laws restricting abortion, saying they had indulged in "an exercise of raw judicial power." While acknowledging that the court "perhaps has authority to do what it does my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this court."

Thirteen years later, White dissented in another case reaffirming abortion rights, warning the court against "the unrestrained imposition of its own, extraconstitutional value preferences." By then, the court's "value preferences" had replaced the Constitution in too many cases.

Byron White was a champion of the rights of human beings spelled-out in the Constitution, including already-born African-American children (he favored the use of federal power to eradicate the vestiges of segregation in schools) and the unborn of every race and gender.

Re-reading his dissent in Roe nearly 30 years later shows how far the court majority has drifted from the clarity once represented by Justice White. He wrote of "those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure."

White continued his clear-minded analysis of the legal and moral flaws in the majority's opinion, stating: "...during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother."

White said he was unable to find anything in the "language or history of the Constitution to support the Court's judgment," which is why Justice Harry Blackmun had to reach back in the DNA of the Founders and discover a "penumbra" which he said was inherent in the 14th Amendment's "right to privacy." Thus, the Court gave birth to an abortion industry that has ground out an estimated 40 million baby casualties, also causing physical and emotional pain to millions of women who now testify they were not told the truth and now regret having had the procedure.

Justice White was in the minority on Roe vs. Wade, but so were those Justices who dissented in the Dred Scott case of 1857. That case, also decided by a 7-2 majority and frequently cited by pro-lifers as Roe's evil judicial twin, discounted the value of black slaves who, the court said, were not fully human under the Constitution and so were not guaranteed the same rights enjoyed by whites. Interestingly, Democrats supported the Court's decision in Dred Scott (as they did in Roe), while Republicans vigorously opposed it (as at least conservative Republicans did in Roe). Newspapers, divided between Republican and Democratic ownership, fell editorially along party lines on Dred Scott. Republican papers condemned the decision. Papers owned by Democrats defended it. It's fascinating to examine the reasoning behind the differing opinions and notice how closely they match the moral arguments for and against Roe.

Dred Scott proved that a majority opinion is not always correct. Someday, when we come to our senses over the intrinsic value of human life, Justice Byron White's dissenting words will be seen as visionary, while the words of Roe's majority will receive, and deserve, the same disdain we now heap on the majority in Dred Scott.

JWR contributor Cal Thomas is the author of, among others, The Wit and Wisdom of Cal Thomas Comment by clicking here.

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