The Fruit of Abortion, Part 2
Souter—Friend or Foe ?
Conclusion
In the first part of this two-part article we saw that Justice David Souter is the pivotal vote on the U. S. Supreme Court that could overturn the infamous Roe v. Wade abortion decision and its terrible progeny. He was President Bush's moderate, un-controversial nominee, assured to be confirmed by the Senate without much of a fight. His legal and personal views on abortion were unknown. President Bush even made it a point of not asking Souter about them. There are two sources of information, however, which can give us a clue about Souter's views. The first is his concurring opinion in an abortion-related case, Smith v. Cote, which was analyzed in last month's column. The second source is his confirmation hearings before the U. S. Senate, the subject of this article.
The Confirmation Hearings
In September of 1990, Souter testified for three days before the Senate Judiciary Committee in hearings on his nomination. After three days the Senators, political pundits, media, pro-life and pro-abortion forces alike, all proclaimed in unison: "We still don't know anything about this guy's views on abortion." Aw, c'mon fellas. Hundreds of pages of transcripts have to reveal something. They did. In the middle of such dry, monotonous, and repetitious questioning and testimony, this little colloquy on the second day took place:
Senator Gordon J. Humphrey: Judge, you were a member of the board of trustees at the Concord Hospital from 1971 to 1985. In 1973, the trustees voted to begin performing abortions in that hospital. Have you said for the record how you voted on that issue?
A. I think I have, but the—I voted for the resolution...
Q. So you voted in support of the policy change, the result of which the hospital began to perform abortions, consistent with the law, of course.
A. That abortions could be performed within the hospital and my, also, my recollection also is that the resolution was explicit in saying that this did not obligate a given hospital employee or medical staff member to do anything against conscience.
Q. Right. Good, good. Well, I'm not asking you, in this next question, to comment on Roe v. Wade, that is, its correctness, but I would ask you to explain your vote as a trustee of the Concord Hospital. Clearly the hospital was under no obligation to begin performing abortions. Why did you choose to support a change in policy such that the hospital began to perform abortions?
A. Well, the change in policy was to allow doctors who choose to perform abortions as a medical procedure in that hospital to do so consistently with Roe v. Wade... The reason the hospital took that position, and the reason I voted for it, was that the Concord Hospital was a community hospital; it was not tied to any sectarian affiliation; it served people of all religious and moral beliefs; its medical staff represented all religious and moral beliefs; and so did the patients who went through the hospital. We did not believe that it was appropriate for us, whatever might be the moral views of a given trustee, to impose those views upon the hospital when in fact it was the law of the United States that a given procedure was lawful.
There was, of course, a further justification... One of the functions which the hospital was giving to the community was the function of the greatest degree of safety in medical care. And if abortions are going to be performed, as by law they could be performed, it was appropriate in a non-sectarian hospital to allow the full range of backup services for the safety of the mother...Q. So you did not feel in that case that it was appropriate to bring to bear any moral judgment? Is that what you're saying?
A. I did not.
Q. Does your vote in any way indicate, back then, any way indicate that you feel that unborn human beings are not persons?
A. My vote has no such implication. My judgment with respect to the appropriateness of the procedure in a hospital of which I was a trustee is no more a reflection of personal moral view of mine, pro or con, than would be any judgment I was required to make as a judge of a court.
Well, knock me over with a feather! A good Catholic nose would smell sulphur while reading Souter's concurrence in Smith, but this ought to set off fire alarms. How ardent right-to-life fighters all over this nation could have read this excerpt and Souter's concurring opinion and just shrugged their shoulders is unfathomable.
Any anti-abortion soldier worth his salt realizes that half the abortion battle concerns semantics. Phrases such as "a woman's right," "products of conception," "procreative options," and the like are the weapons of the abortion purveyors who seek to hide the truth from the unsuspecting. A cogent analysis will normally look beneath the form to as certain the substance of an argument. In contrast, in a battle of semantics, the form used reflects the substance. Souter's answers include the following misleading terms (emphasis added):
—"doctors who choose to perform abortions"
—"to impose those views upon the hospital"
—"it was the law of the United States"—"the greatest degree of safety in medical care"
—"And if abortions are going to be performed [anyway]"
—"the appropriateness of the procedure"
Such phraseology would have warmed Margaret Sanger's heart. But does it bring you a warm, fuzzy feeling, or a chill in your bones?
Substantively, Souter's testimony is even worse. First of all, he voted to allow abortions even though the hospital was under no obligation to perform them so as to allow abortionists to choose to take innocent unborn life consistent, of course, with Roe v. Wade. And, for sure, no pro-life hospital worker would be obliged "to do anything against conscience." Then Souter rationalizes his vote by pointing out that a community hospital staffs and serves people of various beliefs, so no particular moral viewpoint may be "imposed."
This is the same pattern of nonsense as in the Smith case. Roe again is the controlling and guiding light. And even though Roe doesn't compel it, Roe makes abortion lawful, so Souter voluntarily goes forth establishing new abortion opportunities. He verified that such is his tendency when in the hearings he explained that although judges should not create new rights, they have a responsibility to search for and "recognize" rights that are "implicit in the Constitution."
The other similarity between this testimony about his hospital trustee vote and his concurrence in Smith is his rationale with respect to pro-lifers. He provides them with the same illusory safeguards; they don't have to participate in the evil, they're merely subjected to watching it or referring patients to those who would participate in such evil.
The added kicker in this dialogue is Souter's confession that not only must doctors and trustees take an amoral (and therefore immoral) stand, but neither must he as a judge of a court bring to bear any moral judgment. If it is the law of the United States, a pluralistic society, then no one may impose or bring to bear any moral beliefs. Ave, Caesar. The law is god.
Conclusion
The discussion above with Senator Humphrey was not an isolated instance or issue of concern. With respect to his opinion on Roe Souter answered: "I have not got any agenda on what should be done with Roe v. Wade if that case were brought before me." Concerning the right to privacy: "[T]here is certainly a core concept of privacy which is to be recognized, and that, certainly, aspects of marital privacy... are among them." On separation of Church and State, Souter considered a Governor's proclamation to fly the flag at half staff to commemorate Good Friday to be unconstitutional. And as if that was not enough, he had to say about the great apostate: "Justice Brennan is going to be remembered as one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have."
These are not the words of a man likely to over turn Roe v. Wade. His writing and comments indicate a willingness to expand rather than limit, much less abolish, abortion rights. His vocabulary is that of a pro-abortionist, in the lay as well as the legal sense. It does not sound like anything ever heard from Rehnquist, Scalia, White, Kennedy, or even O'Connor. One could argue that Souter was using such terminology to appease the liberals on the confirmation committee, but it was not necessary to do so. Such displays were not needed by nor heard from Scalia, Rehnquist, Kennedy or O' Connor in their confirmation hearings. Souter was under oath, and his comments were voluntary, thus giving a more meaningful insight into his character.
His focus is on the creation of abortion rights and the imposition of duties to further such rights; it is not on morality. Indeed, he shuns morality.
Simply stated, he has no concern for slaughtered children, violated and injured women, destroyed families, the devolution of society, or the fact that the "right to privacy" was cut from whole cloth. Rather, he is a proponent and practitioner of the kind of constitutional gymnastics, experimentation, and novelty that engendered Roe in the first place. His allegiance is not to the law of God, but to the god of Law.
Don't put your rosaries away. Instead, pray all the more that this analysis is all wet, and that Souter will be guided in his upcoming decisions by God's grace. Or, if worse comes to worst, that Blackmun, Marshall or Stevens will soon resign, or die in repentance, and that President Bush will appoint a justice who will help to end this plague of abortion on our land.
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