The Fruit of Abortion

The lives of millions of unborn boys and girls depend on one man: David H. Souter. Mr. Souter has recently become the latest justice of the U. S. Supreme Court, and potentially represents the majority vote in the dismantling of abortion on demand. In short, Roe v. Wade hangs in the balance.

An Opening on the Court

The doctrinal underpinning of Roe is a so-called "right to privacy" established by the 1965 U. S. Supreme Court case Griswold v. Connecticut, 381 U.S. 479. Griswold established that the right to privacy is a fundamental constitutional right under the due process clause of the 14th Amendment which protects the right of a married couple to practice artificial birth control.

In 1973, the Supreme Court extended this right to privacy to encompass the decision whether or not to have an abortion, in Roe v. Wade, 410 U. S. 118. The court point-blank refused to determine whether an unborn child is a human being. Rather, it concluded that whatever the child is, it's not a "person" with respect to the 14th Amendment, and the child's right to life is not protected under that Amendment. Hence, abortion became a fundamental constitutional right.

Since 1973, however, the constituency of the court has drastically changed. Of the nine justices on the Supreme Court, only two dissented from legalized abortion on demand in the Roe decision: William Rehnquist and Byron White. Rehnquist is now the Chief Justice. Justice White, Deo gratias, is still with us. Justice Anthony Kennedy, after his appointment to the court in 1987, has indicated his willingness to overturn Roe. Justice Antonin Scalia, even better, chastised Rehnquist's majority opinion in a 1989 abortion decision, Webster v. Reproductive Health Services, 109 S. Ct. 3040, saying it was "perverse" to have decided that case as narrowly as possible in order to avoid reconsidering and explicitly overruling Roe.

On the pro-death end of the bench are Justices Harry Blackmun, Thurgood Marshall, and John Paul Stevens. Blackmun, of course, wrote the majority opinion for Roe. Marshall and Stevens concurred in that opinion.

In the middle sits Justice Sandra Day O'Connor. Though put on the bench by President Reagan, one has to wonder whether a career woman who has made it to the very top of her field would overturn a woman's "fundamental constitutional right." In a 1983 case, Akron v. Akron Center for Reproductive Health, 241 U. S. 416, O'Connor voted with the pro-life justices and pointed out that because of the ever-decreasing age of viability for the unborn, the trimester framework established by Roe was "on a collision course with itself." In the 1989 Webster decision, however, when the Court did abandon the Roe trimester model, O'Connor argued that the Court should not have reconsidered Roe. Evidently, when it comes down to the nitty-gritty, O'Connor must be considered part of the pro-death camp at the Court's inevitable confrontation with Roe.

Political analysts, commentators, and all other involved in the abortion question concur in this assessment of O'Connor. Otherwise, the Souter nomination would not have drawn such attention because Kennedy's appointment in 1987 would have been the fifth and decisive pro-life vote on the Court. O'Connor, though, had at that time already been considered unreliable in the final showdown.

Lastly, there is Justice William Brennan, whose departure created a vacancy on the High Court, and prompted President Bush to nominate Souter. Brennan, the only Catholic on the bench during his long tenure, proved to be the ultimate scandal to the Faith. From abortion to the separation of Church and State, Brennan championed every cause, every doctrine that was anti-Catholic. Whereas Blackmun signed the opinion for Roe, Brennan was the spirit and driving force behind it. His sudden and unexpected resignation truly was a Godsend.

The stage was set: enter Souter.

Souter the Nominee

Who? Just three days after Brennan's resignation, President Bush nominated this unknown federal appeals court judge from New Hampshire. He had an impressive resume, having served as the state's attorney general and justice on the state's supreme court, but he wasn't outspoken on any controversial issues such as abortion. He was Bush's non controversial, moderate candidate who could be confirmed by the Senate without a repeat of the 1987 bloodbath over Judge Robert Bork.

Frantically, the same analysts, commentators and interested parties ran around with their heads cut off scrambling to do research on Souter's viewpoints. To their dismay, however, they found that David Souter seldom penned any controversial opinions. They did finally find an abortion-related case where Souter filed a concurring opinion of his own. Still, though, they concluded, his views on abortion remained ambiguous. Then all of a sudden, a newspaper affiliated with the Los Angeles Times came out in the editorial column suggesting that maybe we shouldn't focus in on Souter too narrowly concerning a single issue such as abortion, and that he seemed to be an open-minded, moderate, and prudent selection by President Bush. Now, editorials like that should be trusted as much as one should trust a lawyer selling a used car.

Basic distrust of the media and the common-sense quest to get information straight from the horse's mouth led to a reading of that opinion, and its concurrence by Justice Souter. It is a 1986 New Hampshire Supreme Court case of first impression and made a great impact upon that state. But more importantly, it gives a small, yet incisive clue to Souter's future approach to the abortion question.

A Clue to His Stand on Abortion

The name of the case is Smith v. Cote, 513 A.2d 341. It is a case of "wrongful birth," that is, "a claim brought by the parents of a child born with severe defects against a physician who negligently fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, thereby precluding an informed decision as to whether to have the child."

The facts of the case are that Linda Smith was under the care of Cote, an obstetrician. Linda was in her second trimester before Cote determined that she had been exposed to rubella. Linda brought the pregnancy to term and gave birth to her daughter Heather, born with congenital rubella syndrome. Linda Smith then sued Cote, alleging that he negligently failed to advise her of the potential for Heather's birth defects and claiming she had the right to sue him for the wrongful birth of Heather because he deprived her of the knowledge necessary to make an informed decision whether to have an abortion. The trial court transferred the question whether she had such a right to sue to the state supreme court. The high court unanimously agreed she had that right.

The court therefore established in New Hampshire the right to sue a physician for not advising a pregnant mother about an unborn child's exposure to rubella in time for her to procure an abortion. The court held that "given the existence of the right of choice recognized in Roe, our common law should allow the development of a duty to exercise care in providing information that bears on that choice." The court in Smith created and imposed upon physicians the duty to exercise care in providing information that bears on the right to have an abortion. Failure to recognize such a right to sue "would dilute the standard of professional conduct in the area of family planning."

The court based its establishment of this right to sue on two factors. First, physicians have an increased ability through amniocentesis and the like to predict and detect fetal defects. Second, given the decision in Roe v. Wade, which the court considered controlling, Cote had to meet a due care standard "to ensure that Linda had an opportunity to make an informed decision regarding the procreative options available to her."

Without getting deeper into the nauseating rationale of this abominable decision, two points should be noted. Of primary concern to the court was the precedential value of the Roe decision. As much as it might have liked to do otherwise, the court's hands were tied, a la Pontius Pilate. The opinion is rife with comments like "we do not hold that our decision would be the same in its [Roe's] absence." Or, that "we are bound by the law that protects a woman's right to choose to terminate her pregnancy. Our holding today neither encourages nor discourages this practice..."

A consequence of this Roe über alles mentality was the court's unnecessary establishment of a "right" to sue based on Roe simply because Roe was there. Even if the U. S. Supreme Court declares there is a lawful "right" to abortion, that does not oblige U. S. taxpayers to fund abortions. In like manner, the same "right" should not oblige New Hampshire physicians to inform mothers that they may exercise such an option.

Now, granted, Souter didn't write the opinion, but he did concur. The entire text of Souter's concurring opinion follows:

First off, note that Souter concurs with the majority opinion. He does not dissent from it, arguing that abortion is bad enough without giving someone the right to sue for being deprived of the opportunity to exercise that "right." It seems hardly likely that Souter will cuddle up to Justice Scalia in the next U. S. Supreme Court abortion case and echo in harmony, "Give us that Roe decision here and now and let's dispense with this nonsense once and for all."

Next, Souter raises a good issue: What about the physician in such a situation who is morally opposed to abortion? But then he does something very strange. In the first paragraph he speaks of the professional obligation of "testing and counseling." In the second paragraph he refers to "testing and advice." In the third paragraph he talks about "rendering such advice" or "timely referral to other physicians who are not so constrained" about abortion. (Emphasis added.) What is so strange about this is that the majority opinion obliged the physician only to test and inform.

Further, when the majority spoke of the duty to "inform," they were referring to information about the effects of rubella on the unborn child, not about abortion information. In addition, the majority said there was a duty to inform, not counsel or advise. To inform someone is to give him the facts. To counsel or advise is to help someone make a decision based on the facts. Souter here is either voluntarily reading duties into the majority opinion that don't exist, or he's proposing such duties. It's not really clear, but either way it's bad news.

So what Souter proposes is triply heinous. First, the physician must inform the expectant mother not only about rubella, but also about abortion. Second, he must not only inform her about abortion, but also counsel and advise her about such an option (subject, of course, to the "due care" standard of presenting the "positive" side of abortion). Third, even if this poor soul is morally opposed to abortion, he must nonetheless refer his patient-mother to a pro-abortion physician for advice. And that's not the worst of it!

The real underlying evil in Souter's voluntarily imposed burdens on physicians is his use of the "personally opposed" doctrine. At first, Souter appears to be a nice guy, being all kinds of concerned about the pro-life obstetrician caught between a rock and a hard place about abortion counseling. But, then, in an act of barbarous false charity, he offers to relieve the anguished physician by saying he may refer the mother to one who is more likely to talk her into killing her child.

Pity the Catholic doctor who, albeit a conscientious objector, must nonetheless refer both his patients, mother and child, to someone else for the purpose of obtaining abortion "counseling." Though he be personally opposed, Souter implies, this doctor may not impose his own personal beliefs on one of his patients who might want to exercise her choice to be rid of the other. Shades of Cuomo and Ferraro.

The voluntary extension of rights, creation of duties, and slavery to bad precedent echo not only in Souter's concurring opinion, but also in his Senate confirmation hearings—to be discussed next month.

1. The title of this article is taken from a quote of Mother Theresa of Calcutta: "The fruit of abortion is nuclear war."