Killing Babies By Judge Andrew Napolitano Jan 21, 2016
In one week during January 1973, President Richard M. Nixon was inaugurated to his second term, former President Lyndon B. Johnson died, the United States and North Vietnam entered into the Paris Peace Accords, and the Supreme Court legalized abortion. Only the last of these events continues to affect and haunt the moral and constitutional order every minute of every day. The Court's decision in Roe vs. Wade is arguably its most controversial in the post-World War II era. Its effect has been as pernicious to human life as was its 19th century intellectual progenitor, Dred Scott vs. Sanford, in which the Supreme Court ruled that African-Americans are not persons. Roe declares that the states may not ban abortions during the first trimester of a woman's pregnancy because the states have no interest in or right to protect the baby during that time period. This made-up rule was a radical and unconstitutional departure from nearly 200 years of jurisprudence, during which the states themselves decided what interests to protect, guided since the end of the Civil War by the prohibition on slavery, and the requirements of due process and equal protection. During the second trimester of pregnancy, the Court declared in Roe, states may regulate abortions but only to protect the health of the mother, not the life or health of the baby, in which, the Court found, the states have no interest. This, too, was a radical departure from well-settled law. Under Roe, during the third trimester of pregnancy, the states may ban abortions or they may permit them; they may protect the life of the baby or they may not protect it. This diabolic rule, the product of judicial compromise and an embarrassing and destructive rejection of the Civil War era constitutional amendments, permits the states to allow abortions up to the moment before birth, as is the law in New Jersey, where the state even pays for abortions for those who cannot afford them. The linchpin of Roe vs. Wade is the judicial determination that the baby in the womb is not a person. The Court felt it was legally necessary to make this dreadful declaration because the Constitution guarantees due process (a fair jury trial, and its attendant constitutional protections) whenever the government wants to interfere with the life, liberty or property of any person; and it prohibits the states from permitting some persons to violate the basic human rights of others, as was the case under slavery. As the Supreme Court sometimes does, it ruled on an issue and came to a conclusion that none of the litigants before it had sought. Roe candidly recognizes that if the fetus in the womb is a person, then all laws permitting abortion are unconstitutional. The Court understood that abortion and fetal personhood would constitute the states permitting private persons to murder other persons. So, in order to accommodate the killing, it simply redefined the meaning of "person," lest it permit a state of affairs that due process and the prohibition of slavery could never tolerate. George Orwell predicted this horrific and totalitarian use of words in 1949 in his unnerving description of tyranny, "1984." Is the fetus in the womb a person? No court has contradicted the Supreme Court on this, and the Roe supporters argue that non-personhood is necessary for sexual freedom. Think about that: The pro-abortion rights crowd, rejecting the natural and probable consequences of ordinary, healthy sexual intercourse, wants to continue to kill babies in the name of sexual freedom. I take a back seat to no one when it comes to personal freedom. But the freedom to kill innocents violates all norms of civilized society. It violates the natural law. It wasn't even condoned in the state of nature, before governments existed. It violates the 13th and 14th Amendments. Yet, the Supreme Court and numerous Congresses have refused to interfere with it. It is a grave and profound evil. It is legalized murder. Is the fetus in the womb a person? Since the fetus has human parents and all the needed human genome to develop postnatally, of course the fetus is a person. A simple one-line statute could have been enacted when Ronald Reagan or George W. Bush were in the White House and Republicans and anti-abortion Democrats (the handful that have made it to Congress) controlled the Congress. They could have ended the slaughter by legislatively defining the fetus in the womb to be a person. They did not. Are the self-proclaimed anti-abortion folks in Congress sincere, or do they march under the anti-abortion banner just to win votes? Their failure to attempt to define the fetus in the womb as a person seriously, and the Supreme Court's unprecedented dance around the requirement of due process and the prohibition of slavery has resulted in 44 million abortions in 43 years. That's an abortion every minute. Abortion is today one of the most frequent medical procedures performed in America; and the Democrats have become its champion. They, and their few Republican allies, have become the champions of totalitarianism as well. The removal of legal personhood from human offspring in order to destroy the offspring is only the work of tyrants. How long can a society last that violates universal norms and kills its babies in the name of "sexual freedom"? Whose personhood will the government define away next?
Abortion and Rape
By Judge Andrew P. Napolitano 8/23/2012
The criticisms of the recent absurd comments by Missouri Republican Congressman Todd Akin, who at this writing is his party's nominee to take on incumbent Missouri Democratic Sen. Claire McCaskill in November in a contest he had been expected to win, have focused on his clearly erroneous understanding of the human female anatomy. In a now infamous statement, in which he used the bizarre and unheard-of phrase "legitimate rape," the congressman gave the impression that some rapes of women are not mentally or seriously resisted. This is an antediluvian and misogynistic myth for which there is no basis in fact and which has been soundly and justly condemned.
Akin also stated that the female anatomy can resist unwanted impregnation. This, too, is absurd, offensive and incorrect. Medical science has established conclusively that women cannot internally block an unwanted union of egg and sperm, no matter the relationship between male and female. I think even schoolchildren understand that.
What has gone unmentioned, however, in the cacophony of condemnation by Republicans and Democrats, is the implication in Akin's comments that rape is not a moral justification for abortion. In that, he is correct: It is not.
Abortion takes the life of innocent human beings who are the most vulnerable in our society. Abortion is today the most frequently performed medical procedure in the United States. American physicians perform about two abortions every minute of every hour of every day: about 1 million a year since 1973. In my home state of New Jersey, abortion is permitted up to the moment of birth, and the state will even pay for it if the mother meets certain financial criteria.
How low have we sunk? What are the consequences of this mass slaughter? How did we get here?
We got here because of the most reprehensible and unconstitutional Supreme Court opinion in the modern era. In a throwback to its infamous Dred Scott decision — in which a pre-Civil War Supreme Court declared that blacks are not persons and hence cannot claim the protections of the Constitution — the court essentially said in Roe vs. Wade the same of fetuses in the womb.
Roe vs. Wade has spawned more slaughter than all 20th-century tyrants combined. The consequences of this slaughter are vast lost generations of human beings who were denied by the law the right to live. The economic consequences from which we all suffer today — entitlements too costly to afford and too few wage earners to pay for them — are directly attributable to the absence of population growth.
I am not arguing in favor of entitlements. The Constitution does not authorize the federal government to provide them. But when FDR and LBJ concocted their entitlement schemes in order to build permanent dependence on the Democratic Party, they understood population growth. Their understanding, too, was slaughtered by abortion. A society that prefers death to life not only cannot prosper; it cannot survive. Soon 40 percent of federal tax revenues will be dedicated to interest on the federal debt, and most of that borrowing has been to pay for entitlements. We are headed for a cliff.
So are the babies in the womb. But isn't the baby in a womb a person? Of course the baby in a womb is a person. The baby is produced by the physical interaction of two human parents, and every unborn baby possesses a fully actualizable human genome: all the material necessary to grow to adulthood and to exist independently outside the womb.
What about rape? Rape is among the more horrific violations of human dignity imaginable. But it is a crime committed by the male, not the female — and certainly not by the child it might produce. When rape results in pregnancy, the baby has the same right to life as any child born by mutually loving parents. Only the Nazis would punish a child for the crimes of his or her father.
Every abortion ends the life of an innocent unborn human being. When politicians in both parties claim to be pro-life but favor abortions because of the criminal behavior of the father, as in rape or incest, they are politically rejecting that hard truth. What other violations of the natural law will they condone for political expedience?