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Jewish World Review July 10, 2001 / 19 Tamuz, 5761

Cal Thomas

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Justice O'Connor and the death penalty --
JUSTICE Sandra Day O'Connor told the Minnesota Women Lawyers last week of her concern that the death penalty is unfair and that it's possible innocent people have been executed. She offered no evidence to support her statement, something a lawyer arguing before her would never be allowed to get away with. She did say that six death row inmates were freed last year and 90 have been exonerated by new evidence since 1973.

O'Connor noted that DNA testing might alleviate some of her concerns if more states that allow capital punishment passed laws mandating such testing after conviction. She also said that defendants who have money often get better defense lawyers than defendants who are poor.

The exoneration of some death row inmates is not an argument in favor of eliminating capital punishment but a testimony to the fairness of a system skewed toward protecting the accused, sometimes to the detriment of justice. Universal DNA testing, where warranted, would make the system even more trustworthy, as would better lawyers for those unable to afford expensive ones.

What's most interesting about O'Connor's speech is that she seems to project on condemned killers an inalienable right to live. Yet, O'Connor does not project a similar view on pre-born babies, even as they are in the process of exiting the birth canal. She has written as much while casting swing votes upholding abortion on demand.

O'Connor lacks a unified legal and moral life ethic. She has written of a "possible'' constitutional right to assisted suicide (Washington vs. Glucksberg, 1997), even though she voted with the majority in that case to uphold state laws that prohibit physician-assisted suicide.

In the case of Planned Parenthood of Southeastern Pennsylvania vs. Casey (1992), which upheld Roe vs. Wade, O'Connor was with the 5-4 majority that reaffirmed the "right'' of a woman to kill her pre-born child, even while the majority recognized the State's "legitimate interests'' in protecting both the health of the pregnant woman and "the life of the fetus that may become a child.''

By the time of Stenberg vs. Carhart (2000), the Nebraska case in which that state sought to prohibit partial birth abortions -- a procedure that sucks the brains from a baby as it is in the process of being born -- O'Connor wrote that the law was unconstitutional because the state lacked the requisite exception "for the preservation of of the mother.'' Oops. The statement begs the question of how a woman can be a mother when the court had decided earlier that what she is carrying is a "fetus that may become a child.'' Any abortionist will state that the "health'' of the woman is in jeopardy, if only to collect the fee. Abortionists aren't about to refer a "client'' to a crisis pregnancy center where she'll be told the truth and offered help for herself and her baby without charge.

In Stenberg, O'Connor wrote that the issue of abortion "is one of the most contentious and controversial in contemporary American society.'' She neglected to mention that the Supreme Court made it even more contentious and controversial by deciding the issue for itself, rather than letting the people's elected representatives hash it out. She also said that the issue presents "virtually irreconcilable points of view.'' Couldn't the same be said of capital punishment? O'Connor is squeamish about killing convicted murderers to protect a few she suspects are "probably'' innocent, but she expresses no qualms about killing the pre-born, whom we know are all innocent.

Why won't O'Connor at least call for more safeguards for the pre-born and for women before an abortion is allowed? Last week, one TV network reported on a new type of sonogram called "4-D.'' The image on the screen of a fully formed baby was so sharp it could have been a home movie of a child trying to swim. What the reporter didn't say was that the baby could be killed if the woman carrying it so decided. Why can't we have laws requiring abortion-minded women to see the image of the baby within them before they have an abortion? Wouldn't that be consumer-friendly full disclosure in the spirit of truth-in-labeling-laws?

If Justice O'Connor believes it a good idea to improve safeguards for convicted killers, only a small fraction of whom may, in fact, be innocent, and if she's leaning toward eliminating the death penalty without those safeguards, as she seemed to be suggesting in her Minnesota speech, why not offer similar safeguards to the pre-born, the most certifiably innocent among us?

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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