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In 1973, seven justices of the Supreme Court of the United States—Burger [Chief Justice], Douglas, Brennan, Stewart, Marshall, Powell and Blackmun—shamefully granted a license to America’s women allowing them to abort their fetuses at any time between conception and birth.


The Court’s Roe v. Wade decision was nothing less than a license to kill, and under its authority during the last thirty-five years countless millions of the unborn have been destroyed.  “Pro-choice” became a euphemism for the power to decide to kill.


As immoral the pro-choice position is, it is light years from government mandated abortions, from official state-policy infanticide.


Twenty-five years ago I wrote that:


“Few people realize that Roe v. Wade opened a Pandora’s Box when the Supreme Court legitimized a “state interest” in pregnant women and their unborn children.  This time around—in this case—antiabortion laws have been struck down and some women permitted to have abortions.  Next time around—in some future case—antiabortion laws may be upheld and no women permitted to have abortions.  The time after next—depending on the current “state interest”—women may even be compelled to abort.  A farfetched notion? Science fiction?  Not if we accept the ultimate logic of Roe v. Wade—as seen from the perspective of a 1977 Supreme Court case.”


This was a bold statement in 1983, and it was treated with derision by virtually everyone who commented on it.  Sadly, my critics understood neither the clear implications of Roe’s ruling that the government possessed an interest in pregnant women and their unborn children, nor the implications of the 1977 Supreme Court case to which I referred.


The case was Maher v. Roe.


In the wake of Roe v. Wades legalization of abortion, the states were obliged to revise not only their abortion laws but also a considerable number of related laws which were directly and indirectly affected by that decision.


Connecticut Welfare Department regulations, which had paid for certain childbirth expenses, limited state Medicaid benefits for first trimester abortions to those which were deemed “medically necessary.”


In 1977, in light of Roe’s legitimization of abortion, the Supreme Court in Maher v. Roe was called upon to decide “whether the Constitution requires a . . . State to pay for . . . [non-medically necessary] abortions when it pays for childbirth.” 


The Maher decision held that the Equal Protection Clause did not require a state participating in the Medicaid program, which had made a policy choice not to fund, to pay the expenses incident to nontherapeutic abortions for indigent women simply because it had made a policy choice to pay expenses incident to childbirth.


In the course of Justice Powell’s opinion he revealed, perhaps inadvertently, the dark and potentially dangerous side of government’s supposedly benign interest in pregnant women and their unborn children.


Powell wrote that “[t]he State unquestionably has a ‘strong and legitimate interest in encouraging normal childbirth’ . . . an interest honored over the centuries.”


The unmistakable implication of this statement is that “encouraging normal child birth”—or, on the other hand, not encouraging it—is a political policy choice for the state to make. 


Depending on the circumstances, depending on where the “strong and legitimate” government interest might lie in any given situtation, the state’s political policy choice could well be not to encourage normal child birth—instead, to “encourage” abortion, through the coercive power of the state.


This horrendous yet unmistakable implication of Powell’s words, written for himself and five other Supreme Court justices, was then spelled out explicitly in footnote 11 of his opinion:


If a state is not neutral between abortion and childbirth, it necessarily favors one over the other.


If it favors abortion, how then does the state implement that “legitimate concern” so important to “the future of the State”?


Ultimately, it implements that “concern” by compelling abortions.


In 1977, six justices of the Supreme Court of the United States (Powell, Burger [Chief Justice], Stewart, White, Rehnquist, Stevens) subscribed to this monstrous proposition by tacitly accepting Powell’s example that excess population growth might be a sufficiently legitimate government interest to allow a state to compel abortion. 


Although Justices Brennan, Marshall and Blackmun—three of the Court’s four liberals— dissented on the Equal Protection Clause aspect of the case, not one of them even referred to Powell’s footnote 11, let alone took issue with it.


Plenty, because he may approve of the same thing.


The Democrat Party candidate for President of the United States has been rightly criticized for not having produced any legal scholarship since his graduation from HarvardLawSchool nearly two decades ago.


However, while a law student Obama did write and publish a short student “comment” on an Illinois case that had ruled children could not sue their mothers for injuries caused by the latter’s negligent driving during pregnancy.


There are three points that need to be made about Obama’s student comment.


First, although his task was to analyze the Illinois Stallman decision, he went out of his way to stress “a pregnant woman’s interest in privacy and bodily integrity,” to argue against “using civil liability (e.g., the fetal-maternal law suit) to control the behavior of pregnant women, and to deny that potential civil liberty could promote fetal health.  In the latter regard, he wrote that the Stallman decision:


indicates the dangers such causes of action present to women’s autonomy, and the need for a constitutional framework to constrain future attempts to expand “fetal rights.”  (Obama’s quotation marks.)


In this, we see the customary pro-abortion exalting of the woman at the expense of her fetus, whose “rights” he denigrates.


Next, in an early example of what we have learned is his deliberately opaque style of communication, he wrote that:


 It is true that, under Blackmun’s discredited trimester analysis in Roe v. Wade, a woman’s abortion decision is subject to some government regulation.  But Obama didn’t inform the readers of the Harvard Law Review what that “discrete regulation” is, who scrutinizes it, for what purposes, or why.

Yet Obama used this sophomoric observation as counterpoint to another kind of scrutiny, that of a “woman’s behavior” in the context of a fetal-maternal law suit.  Again, readers of the Harvard Law Review were left to wonder: what behavior, what scrutiny, by whom, for what purpose, and why that scrutiny is more “intensive” than that given the abortion decision?


In sum, Obama’s ersatz profundity, today held up by his supporters as evidence of a superior legal intellect, is merely empty elite Harvard jargon devoid of substantive meaning.


Not devoid of meaning, however, is Obama’s essay’s very revealing next sentence, albeit a non sequitur:


On the other hand, the state may also have a more compelling interest in ensuring that fetuses carried to term do not suffer from debilitating injuries than it does in ensuring that any particular fetus is born.


This statement juxtaposes two alleged state “compelling interests: (1) “ensuring fetuses carried to term do not suffer from debilitating injuries,” and (2) “ensuring that any particular fetus is born.”  (My emphasis.)


Read fairly, Obama’s first alleged government compelling interest reflects the Roe v. Wade assertion that the state has an interest in the pregnant women and their unborn children.  This is, as we have seen, an extremely  dangerous proposition if, among other state problems, demographic considerations (e.g., overpopulation) require fewer children be born.  Then, government-mandated infanticide may be necessary to rid us of the surplus.


Which brings us to the juxtaposed second alleged government compelling interest, but one which,  for Obama, is a  less important interest: ensuring that fetuses be delivered.  Here, Obama may have been speaking in code to make the same point that the Supreme Court made in Maher v. Roe: that there are circumstances where it is in the government’s interest that certain children (perhaps those with developmental disabilities) not be born.  There is only one way to accomplish that:  through government-mandated infanticide.