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Prospectus For a Legal Challenge to Roe v. Wade

by Fr. Clifford Stevens

1. INTRODUCTION: Laying the Groundwork for a Legal Challenge.

2. The Original Legal Mind

3. Constitutional Parallels

EPILOGUE: Judicial Craftsmanship and the Legal Challenge.


1. INTRODUCTION: Laying the Groundwork For a Legal Challenge

A legal challenge to Roe v. Wade is a work of judicial craftsmanship, and is almost wholly the work of an original legal mind: the lawyer who prepares and presents the case. Contrary to a common impression, the justices of the Supreme Court are merely judge and their decisions are wholly dependent upon the cases as presented by the conflicting parties. In fact, the law and court procedure forbids them to pass judgment on any issues not presented to them in actual cases. The preparation and presentation of a case, then, are critical and even decisive in the outcome of a case.

Just to give two examples. in the preparation for his presentation in Gibbons v. Ogden, Daniel Webster spent three years preparing his arguments, preparing for this case with the same thoroughness with which he had prepared for two previous landmark cases: Dartmouth College v. Woodward and Mc'Culloch v. Maryland. In all three cases, but particularly in Gibbons v. Ogden, new principles of constitutional law were laid down which became precedents in their own right in future cases. Webster was noted for the intense preparation he gave to each case and for his massive knowledge of constitutional law.

The second example is that of Louis Brandeis in Muller v. Oregon, which changed the whole direction of the Supreme Court and of American law in the 20th century. In preparation for the case, Brandeis collected empirical data from hundreds of sources, gathered into his famous Brandeis Brief, which became the model for future Supreme Court presentations. Two weeks before his presentation of the case before the Supreme Court, Brandeis checked into the Harvard Club in New York, locked himself in his room and put all of his facts together by intense concentration on the material. His success in the case went contrary to every previous decision of the Court, making "workers' rights" part of the national vocabulary and part of constitutional law.

As in these pivotal cases, Roe v. Wade opened a whole new dimension in constitutional and statutory law: the question of the unborn, demanding in those who challenge that decision a thorough knowledge of the major decisions in Supreme Court history. Those major decisions brought the Constitution to bear upon problems never before faced by the courts and the necessity to draw from the Constitution itself an application of its principles in new and unprecedented ways. It is in those landmark and pivotal cases that parallels to abortion are to be found, as new applications of constitutional law reveal how the Constitution applies to concrete cases.

The solution to the abortion question is not to be found in amicus curiae briefs in cases of abortion coming before the Supreme Court, but in challenging the practice of abortion in the courts in concrete cases in which constitutional principles are being violated. The parallels for this challenge are found in Constitutional history itself.

The basic premise of the abortion question is that, legally and constitutionally, it is uncharted territory. There are no direct precedents to draw upon and no legal authorities to appeal to. There is only the text of the Constitution itself and its interpretation by the courts over two hundred years, embodied in those cases and decisions that have marked Supreme Court history. The raw research needed to resolve the question legally has not been done, and the foundational work to uncover the issues involved is totally lacking.

What the Catholic legal community has attempted, in its amicus curiae briefs, is to use the courts and the judicial process to further the Catholic position on abortion, in other words, to proselytize in the courts. That is precisely the reason why its efforts have not been taken seriously and why the court has turned a deaf ear to such briefs. No religious body may use the courts or the federal government to proselytize and such an effort is, in fact, contrary to the constitutional principle of the separation of church and state.

Any opposition to abortion in the courts and in the public arena must be, first of all, a constitutional opposition, based on principles enshrined in the Constitution of the United States, on precedents in constitutional law and on rights which the Constitution was fashioned to secure and protect. Any other effort is not only doomed to failure, but is ultimately counterproductive. This is something that the pro-life legal community has consistently failed to recognize, and has attempted instead to carry on a public relations campaign rather than a constitutional challenge.

The judicial material for a legal challenge is to be found in the briefs and oral arguments of past Supreme Court decisions, in particular, those cases that are considered the major decisions in Supreme Court history. This material is vast, abundant, illuminating and instructive, throwing light on the judicial process and the chemistry of Supreme Court decision-making. These cases demonstrate how a foundational base is laid in presenting concrete cases, what are the rules of evidence recognized and accepted by the Court and the reasoning process that enters into a Supreme Court decision.

What is also revealed in a careful study of this material is how the legal mind works in laying bare the exact terms of a conflict, and how the terms of a conflict are brought before the Court. The effect of such legal reasoning on the hearers, in a successful presentation of a case, is indicated by the words of Joseph Story in McCulloch v. Maryland, after listening to a presentation by William Pinkney: "Mr. Pinkney rose on Monday to conclude the argument; he spoke all that day and yesterday, and will probably conclude today. I never, in my whole life, heard a greater speech ... His language, his, style, his figures, his arguments, were most brilliant and sparkling. He spoke like a great statesman and patriot, and a sound constitutional lawyer."

There is no doubt that the groundwork for any legal challenge in the courts must be based upon a total familiarity with actual cases brought before the Court in its two hundred year history, for it is here that the mechanics of a legal challenge are to be found. These cases also demonstrate why and how good cases are lost and how constitutional principles apply in specific cases.

The idea that abortion as a constitutional question has been settled by the legal reasoning of Roe v. Wade is a false assumption based on a total unfamiliarity with the history of the Supreme Court. It is legal reasoning that changes the direction of Supreme Court decisions and it is legal reasoning that convinces justices that a previous decision must be overturned. It is the ability to draw such reasoning from the facts of a case and from previous decisions of the Court that makes the difference in presenting a case. The best proof of this is the huge number of Supreme Court decisions decided by a 5-4 vote of the justices.

It is the contention of this Prospectus that the foundational work necessary for overturning Roe v. Wade has not been done in the over 25 legal arguments that could challenge that decision. Nor are the legal arguments limited to these. These arguments are to be gleaned from the history of constitutional law, from the major decisions of the Supreme Court and from the, empirical and legal, factors of the abortion question.

2.The Original Legal Mind.

An original legal mind appears, only once or twice in a generation, in the person of a Webster, a Story, a Lincoln, a Harlan, a Holmes, a Brandeis or a Cardozo. It is original in that it pioneers a breakthrough in legal reasoning, a giant leap forward in the facing of some critical constitutional question, or in working through the implications of a basic constitutional principle. The legal breakthrough is unprecedented and unexpected, in direct contradiction to the accepted legal doctrine of the time. It is opposed and even ridiculed, since it challenges certain assumptions that have become the common property of the legal community. The prime example in our century is Louis Brandeis, who, single-handedly, created a whole new tradition of constitutional law.

The major example in constitutional history is John Marshall, who, in a series of classic Supreme Court decisions, created a federal judiciary and a body of constitutional doctrine that extended the Constitution into the social fabric of American life and into the mainstream of American concerns. Breakthroughs in constitutional law have been the work of lone individuals, who recognized a problem in human relations crying for a solution, with no ready-made solution easily at hand.

There is no ready-made legal solution to the abortion question, but this has been true of every constitutional question that has ever arisen. The solution, when it comes, is deeply personal and highly original, made up of elements obvious to no one else at the time, one has only to read the fierce opposition of a Thomas Jefferson to the Supreme Court decisions of John Marshall, or the mind-set of Stephen Douglas in the Lincoln-Douglas Debates, or the opposition of the corporate community to the legal doctrine of Louis Brandeis, to realize the originality of their solutions. But without these breakthroughs, American constitutional law, as we understand it, simply would not exist.

In every case, the foundational work required was massive, extensive, opening new avenues of constitutional thought and worked into a unity with remarkable clarity and compelling logic.

But this clarity and compelling logic did not constitute the genius of their solutions. It was their embodiment in the concrete empirical facts of a particular case, or series of cases, that constituted the breakthrough and the touchstone of their legal genius. In many cases, one can pinpoint the historical moment that sparked that particular legal mind into action, when that mind began to formulate the beginnings of an original constitutional solution.

For Brandeis, it was the Homestead strike of 1892 that brought about a seismic change in his legal outlook as he faced a totally new dimension in human relations. "It was the affair at Homestead", he wrote later, "which first set me to thinking seriously about the labor problem. It took the shock of the battle, where organized capital hired a private army to shoot at organized labor for resisting an arbitrary cut in wages, to turn my mind definitely toward a searching study of the relations of labor to industry." He recognized the inadequacy of an inherited legal doctrine to face the new human problem. The result was the creation of a totally new solution. "One morning the newspaper carried the story of the pitched battle between the Pinkertons on the barge and the barricaded steel workers on the bank. I saw at once that the common law, built up under simpler conditions of living, gave an inadequate basis for the adjustment of the complex relations of the modern factory system. I threw away my notes and approached my theme from new angels.

The "Brandeis Brief", which brought his "new angles" into a concrete case argued before the Supreme Court changed the whole course of constitutional law in the 20th century. With his own appointment to the Court in 1916, with fierce opposition from the industrial community, his solution began to influence the Supreme Court itself.

In every major development in constitutional adjudication, an original legal mind has brought new angles into a concrete case involving fundamental rights, new angles that had not been recognized before or had not emerged through historical development. In the early stages of the nation, after the Constitution had been ratified and the Supreme Court had begun its work of applying that Constitution to growing developments, these new angles multiplied rapidly, as constitutional principles began to be applied to every aspect of American life, not without controversy and not without intense debate. That debate produced the precedents which have become the backbone of American constitutional law and upon which the judicial system has drawn in adjudicating cases.

In every major case, these Supreme Court decisions were divisive, since they encroached upon the interests' of certain persons or certain classes of persons and limited their power over others, enshrining in the law itself the rights of individuals whose rights were not previously recognized by law. The cases themselves arose because of some crisis in American life, some conflict of rights, in which whose fundamental right was being violated was not clear, and for the solution of which a court decision had to be made.

In every case also, it was some new angle, unrecognized before, but clearly an integral part of the Constitution, that provided the resolution of the case and became part of constitutional history and of constitutional law. Moreover, the new angle was unprecedented, violently attacked and vehemently denied in the public forum and in legal journals.

Sometimes it was long-established custom or practice that was the issue, such as slavery, segregation or child labor; sometimes it was a new issue that emerged from the economic or political life of the nation, such as workers' rights or womens' rights, sometimes it was an issue that emerged from some concrete event, such as the New York Times libel case, or the flag-burning incident of recent years. In each case, constitutional principles were brought to bear upon the issue, not without intense public debate.

Often, on the surface, the issue seems to be a political one, a conflict between states' rights and federal jurisdiction, between social groups or political parties, between North and South or capital and labor, liberal and conservative, Blacks and Whites. But at bottom, there are constitutional issues involved, a conflict over individual and personal rights, rights enshrined in and guaranteed by the Constitution of the United States, demanding a new hard look at that Constitution and its application to concrete historical circumstances.

And in every case, the issue is resolved by litigation. "The Constitution's continuing strength, flexibility, and vitality stem from the fact that the Supreme Court, since its inception, has felt compelled - by virtue of the justices' oath to see that justice is done - to give meaning to the general phrases of the Constitution. Given the presence of a legitimate case or controversy... the justices of the Supreme Court have, in the words of Marshall, 'expounded' upon the meaning of the general terms in 'response to life and experience' . Litigation is vehicle by which the fundamental principles rooted in our Constitution are "given content and relevance in each generation… Constitutional adjudication is the genius of our democracy and it's noblest attribute."

Debate in the public forum has its place, but it is not public debate that resolves the issue constitutionally and legally. It is constitutional adjudication and the introduction of new angles into the debate, new angles that are seen to have bearing on the Constitution itself and on the rights guaranteed by the Constitution. The public debate often reduces the issue to class warfare, a controversy between political factions, a battle on social or economic issues. It is only when the public debate has entered the courts that the real issues emerge and are clarified, and that a judgment is made on whose rights are being violated. Until the issue enters the courts by litigation, sometimes massive litigation on a national level, the constitutional issues and the public debate remains unresolved.

3. Constitutional Parallels.

The constitutional parallels for a legal challenge to Roe v. Wade are cases that have made constitutional history, were vigorously argued when they were presented to the Court and became the foundation stones in the development of constitutional law. What these cases did was to take key concepts of the Constitution itself, such as commerce, regulate, person, right, power, provide, and determine their exact application in concrete cases, extending the concept to new times and circumstances.

In almost every case, in those cases that were landmark decisions of the Court, the concepts were interpreted expansively, and opposed a narrow interpretation of the terms.

In these major cases, those who lost the cases, argued for a narrow application or designation of the constitutional term, for the sake of some private interest or claimed right. This application or designation was ultimately rejected by the Court.

What all of these cases demonstrate is that the words commerce, person, power, right, regulate, provide, as used in the Constitution, have a broad meaning and are not to be interpreted in a restricted and narrow sense. When legal reasoning cogently demonstrates that such a narrow and restricted meaning is being used to support a claim or defend a position, that claim has been rejected by the Justices. That is one of the lessons to be learned from these cases.

The appeal to precedent in Supreme Court adjudication refers not only to Supreme Court decisions, but to the form of legal reasoning as well, the manner in which constitutional concepts are understood, and the method by which decisions are reached. Not to understand this is a form of legal and judicial illiteracy.

The groundwork for a legal challenge to Roe v. Wade must be laid in these constitutional parallels, since there are no direct precedents in constitutional law directly bearing on the question of abortion. It is true that it was the moral outrage in the face of slavery and the Dred Scott decision that brought into focus the constitutional issues involved in the issue of slavery, just as it was the moral outrage and the social embarrassment of segregation that led to the outlawing of segregation by Brown v. Board of Education. But it was the constant litigation on these questions that brought out the constitutional principles involved, that demonstrated how such principles apply in concrete cases, and what forms of legal reasoning convince the Court. In the adjudication of all these major cases, the foundational work was critical and massive.

It is the thesis of this Prospectus that the foundational work for resolving the abortion question constitutionally and for overturning Roe v. Wade has not been done. The solution to the question is to be found in the Constitution itself and in those Supreme Court decisions that have extended the Constitution into the fabric of American life. The parallels and precedents are there, the raw material for overturning the Roe v. Wade decision. This Prospectus provides a blueprint for overturning that decision and enshrining the rights of the unborn in the very fabric of constitutional law.

"Like all appellate courts, the Supreme Court is bound by the facts already developed from the testimony and information presented in the lower court trial."




Judicial craftsmanship recognizes that the law itself is sometimes responsible for evils in society and that the law itself must play a part in the eradication of those evils. That is the legal chemistry behind the reversal of Supreme Court decisions. The first step is to recognize the legal chemistry that brought about certain decisions and the legal flaw in that chemistry that supported, defended or upheld the decision.

In this, we are not concerned with the question of abortion itself, as a moral and religious issue, but about the legal support given to the practice of abortion by the Roe v. Wade decision of 1973, together with the "abortion cases" that have followed on that decision. What must be demonstrated, on legal and constitutional grounds, is that the Roe v. Wade decision contradicted definite constitutional principles and is in reality, not a work of legal craftsman ship, but a legal and constitutional monstrosity.

The conviction that abortion is morally evil is not enough; it must also be demonstrated that it violates established constitutional principles.

The history of the abortion question, as a legal and constitutional matter, is found in historical sources that predate the Constitution of the United States, as well as in those writings and decisions that mark the development of American jurisprudence. That history has its beginnings in the commentaries and scholarship of James Kent and Joseph Story, who brought into the American experience, with its revolutionary concept of law and government, the precedents, legal reasonings and judicial decisions of a vast European tradition of law. The body of legal reasoning in their Commentaries and Digests demonstrates an historical transition from European to American law at its very source. It also provides a model for any further developments in American law.

That development is marked by radical departures from the European tradition, in the American constitution itself and in the major decisions of the American courts. The unique character of American law, with its firm foundation in individual rights and in the powers of government proceeding from the people, affected every major conflict that came before the courts. The abortion question is no exception and Roe v. Wade could mark a development in American law as significant as the major decisions of the Marshall court and the issues of slavery, segregation, women's rights and child labor. It is the work of legal reasoning to lay the groundwork for that development.

In the American legal tradition, "the source of judicial authority (is) the process of judicial reasoning.... reasoning illuminate(s) the fundamental principles of American government".

The Roe v. Wade decision was decided by a plurality of opinions, not by a unanimous decision of the Justices, and this is even more true of the Casey decision. This indicates a division in the Court itself, a division that can be overcome only by legal reasoning and careful judicial craftsmanship. In Casey, Justice Rehnquist stated in his dissent: "We believe that Roe was wrongly decided and that it can and should be overturned", and that the Court "was mistaken in Roe when it classified a woman's decision to terminate her pregnancy a fundamental right."

Justice Scalia in his dissent in Casey stated that "liberty finds no refuge in a jurisprudence of doubt". and observed even more strongly that "Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act.

What is clear from the Casey decision, as well as other abortion cases following on Roe v. Wade, is that even the Supreme Court is divided on the issue of abortion and that no clear legal reasoning has emerged to clarify on accepted constitutional principles the real issues in the case. The issue is ripe for new and original thinking on the question and for a clear articulation of the constitutional principles wrapped up in the case.

What is emerging in the legal debate is that the categories used in the past to resolve constitutional questions and human rights violations have no bearing and simply do not apply in the question of the unborn. It is a totally new category of constitutional law and the fundamental right involved requires the fine scalpel of legal reasoning to isolate it from the other issues that surround the question. What has been reached is a watershed in constitutional history and a conflict of interests that are not easy to disentangle. But that is what judicial craftsmanship is all about and it is that very conflict that constitutes the judicial challenge.

The precedents are there, not only in the pioneer craftsmanship of a Marshall, a Harlan or a Brandeis, but in the other watershed cases in constitutional history: Marbury v. Madison, McCulloch v. Maryland, Gibbons v. Ogden, Pennington v. Coxe, Plessy v. Ferguson, Lochner v. New York, Muller v. Oregon, United States v. Darby, Brown v. Board of Education, and hundreds of others that demonstrate how the Constitution of the United States applies to concrete cases and to ongoing conflicts of the American people. It is from these patterns, parallels and precedents that a legal challenge to Roe v. Wade is crafted, a task that still remains to be done as the conflict continues.

Part of the legal entanglement is that legal reasoning in the abortion question sees only a woman's fundamental right at issue, or only the unborn child's. There is no legal concept to embrace the fact of divided dominion, as in the Law of Bailments, where the rights of two parties are involved. Constitutional law has never had to consider the question of divided dominion, where two rights are intertwined, or to define the constitutional relationship of the two. For this "new angles" and new concepts are needed and a kind of judicial craftsmanship that has long been absent from the Court. It took a Louis Brandeis to convince the Court that "liberty of contract" was not the issue in the conflict between capital and labor, but just wages and just working conditions, that the rights of capital were not absolute and did not include the right to exploit the worker. A similar kind of reasoning is needed in the abortion question that does justice to a very unique relationship, more intimate and inter-woven than the relationship of employer to employee, and more destructive in its consequences when that relationship is not carefully defined.

The task is, first of all, one of judicial craftsmanship, in which a first-class legal mind dissects with the scalpel of legal reasoning all the pertinent elements of a concrete case, linking it with past decisions of the Court and aligning it with those constitutional principles and concepts imbedded in the very text of the Constitution. "We, must never forget", wrote John Marshall, "that it is a Constitution that we are expounding." That this has not been done by the pro-life legal community is evident from the arguments and legal briefs that have been presented to the Court. That such legal craftsmanship is possible is the main point of this Prospectus and that this is the legal solution to the question of abortion is the chief conviction of this paper.

New Perspectives on the Defense of the Unborn as a Constitutional Issue


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