inside sources print logo
Get up to date Delaware Valley news in your inbox

POINT: What Would Founders Think of Dobbs Decision? James Madison Would Love It

For another point of view see “Counterpoint: What Would Founders Think of Dobbs Decision? Not Much”

 

When the U.S. Constitution was ratified June 21, 1788, the two men most responsible for its success were Alexander Hamilton and James Madison, who, along with John Jay, wrote “The Federalist Papers.”

Four years later, they had markedly different approaches to interpreting the document they helped create.

Hamilton, perhaps because he wanted a national bank that wasn’t mentioned in the Constitution along with an active central government, came to interpret the Constitution as being open-ended: if something isn’t prohibited by the document, it is allowed — or as he and his Federalist friends might have put it, implied.

By contrast, the Father of the Constitution, James Madison, along with friends like Thomas Jefferson, viewed the Constitution as a limiting document: if something is not expressly stated in the Constitution, it is prohibited.

More than two centuries later, the debate between Hamilton and Madison continues to define the two opposing schools of constitutional interpretation. As of June 24, 2022, when the Dobbs v. Jackson Women’s Health Organization decision was published and Roe v. Wade was overturned, it’s clear Madison won.

One of those schools, and the one that prevailed in the Dobbs decision, is referred to as textualism or, as it is sometimes called, originalism. Madison would have argued for textualism/originalism by describing what we usually do when we look at words and try to figure out their meaning. The textualist/originalist approach first asks judges to apply the text — do what the words say. But it recognizes words can be unclear when applied to varying circumstances. In that event, the originalism part of the approach says to look beyond the words but only to ask what was intended by those who chose — and those who ratified — those words. They can tell you what they meant.

The second school of constitutional interpretation, the Hamilton method, goes beyond limiting rights to what was said and what was intended. This approach, which could be called the Humpty Dumpty school of constitutional interpretation, was best expressed by Humpty himself. You will recall Alice asked him in “Alice in Wonderland” “whether you can make words mean so many different things.” Humpty’s response was that words were not his master. Instead, he said that when he uses a word “it means just what I choose it to mean — neither more nor less.”

Now it was conceded by Justice Harry Blackmun in his majority opinion in Roe v. Wade that there were no constitutional words expressly conveying a right to abortion or even any suggestion of an original intent to convey such a right. But, the words were not going to be his master. Instead, he agreed with Humpty Dumpty that it was permissible to shift meanings and invent a constitutional right to an abortion. The lack of an expressed instructional prohibition on abortions was claimed in Roe to permit the finding of a constitutional right to abortion.

It was the Humpty Dumpty logic of Roe v. Wade that led the majority in Dobbs to decide that the question of abortion in our country had a great fall and could not be put together again. Instead, the Dobbs court, recognizing the lack of a constitutional basis for the Roe decision, returned the issue of abortion to the state for legislative resolution.

The Dobbs majority said legislators have to put this together.  James Madison would have approved.

 

Please follow DVJournal on social media: Twitter@DVJournal or Facebook.com/DelawareValleyJournal

 

FLOWERS: Roe v. Wade and The Arrogance of Power Over Life And Death

When you’re just a month into your eleventh year on earth, your horizons are fairly limited. School, summer vacation, annoying younger siblings and Bobby Sherman are pretty much the only things that make any impact. Three of them are inevitabilities, and the pop idol is a distant dream. Life, in other words, is quite simple.

But when I was just a month into my eleventh year, something happened that had an impact on the following 49.

I was sitting in a classroom when the nuns announced over the loudspeaker that the U.S. Supreme Court had legalized abortion. It may have been math or it may have been religion, but the only thing that I remember is the moment of prayer, and then a quick return to our classwork. I am assuming the teachers didn’t want us to dwell too much on an event that had no impact – yet- on their students.

The next seven or so years were lived with a vague understanding that Roe v. Wade was wrong, was immoral and was a direct challenge to my upbringing as a Catholic who believed that life begins at conception. But I didn’t go to the March for Life. I didn’t pray in front of Planned Parenthood clinics (I didn’t even know how to get to one, which is just as well because I would have been scared to know that there were places in nice suburban neighborhoods where women could kill their unborn babies). I didn’t write about it, didn’t give my opinion about it, didn’t really think much about it except on Sundays at Mass (and sometimes not even then).

But it was always there, lurking behind every other thing that I did, every other activity in which I participated, every other accomplishment I managed to achieve. I was the Roe generation, those women who were told that they had dominion over life and death. That was both a powerful, and damning, message for a young female to learn.

When you tell someone that she does not have to take responsibility for her “mistakes,” as President Obama once described an unplanned pregnancy, you are training her to think that she has complete impunity. It creates a sense of invincibility, entitlement, and arrogance. I can confirm that I developed those qualities, and I have no problem attributing them to the overriding idea that women were autonomous beings who had the ability to determine who lives, and who dies.

It was only when I started college and mixed in with other young women who’d been taught the same lessons, the “cussed individuals” of Bryn Mawr, that I took a step back and tried to analyze what it meant to really be “autonomous.” Intelligence was a gift, the ability to apply for jobs that my grandmother could never aspire to was a given, knowing I was the equal of my brothers and the boys over at our companion school Haverford was assumed.

But this added sense that I was also able to change the course of another human being’s life by deciding that the unborn “he” or “she” was inconvenient started to bother me. The Catholic morality began, imperceptibly, to consume the feminist nihilism that had seeped into my daily existence.

And that’s when I realized that I was pro life. There was no specific day that I woke up and said “I oppose abortion, and that will be a fundamental part of my existence from now on.” I simply started looking at my obligations in a different way. I went to law school not to make money, but to gain a tool with which to challenge injustice. (Good thing about the not making money part, because if that had been my goal I would have been a devastating failure)

I began to practice immigration law, because I saw the need to assist the most vulnerable in a concrete and effective way. And I started using my voice for those who had no voice, but who existed. The fact that seven old men in black robes had denied their existence didn’t change the metaphysical, biological or moral reality of their condition.

Much of what I did in my pro-life advocacy was rhetorical. Columns written. Statements made before legislative bodies. Rallies in state capitols. Television and radio appearances. Trolling abortion rights advocates on social media (not nice, I know). And not one of those things saved a life teetering on the edge of non-existence.

But that changed on June 24, 2022. When abortion was legalized I was sitting at a classroom desk, saddle-shoe-clad feet kicking the desk in front of me.

When Roe fell, I was sitting at a computer, deep into my sixtieth year with the wrinkles and gray hair that reflected a half century’s journey.

And as it started, so did it end.

With a prayer.

Please follow DVJournal on social media: Twitter@DVJournal or Facebook.com/DelawareValleyJournal

Radnor Democrats Push Pro-Choice Ordinance Blocking Enforcement of Future Abortion Laws

Radnor Township is ready to break with the rest of Pennsylvania, at least when it comes to abortion.

On Monday, the township commissioners voted to advance an ordinance that would prohibit the use of township resources to enforce any new abortion restrictions the state might put into place if Roe v. Wade is overturned as many U.S. Supreme Court watchers expect.

George Badey, chair of the Radnor Democrats, touted the proposed ordinance in his May newsletter and asked members to come out and support it. “We will not tolerate the GOP using Radnor taxpayer-funded local law enforcement resources to take away the currently existing rights that Pennsylvania women have had for almost 50 years!” Badey wrote.

BOC Vice President Jack Larkin offered an overview of the ordinance at Monday’s meeting.

“What this would do (is) to preclude the police or any other township employee from using township resources including their salaries to affect an arrest or otherwise investigate, prosecute, or penalize abortion as it is currently permitted in Pennsylvania,” he said. “This would essentially freeze the right to abortion here within Radnor Township.”

Current Pennsylvania law bans abortions after the 24th week unless the woman’s life or health are at risk.

Commissioner Lisa Borowski, who is running to be a state representative, said the ordinance, if adopted, would protect a woman’s right to make her own medical decisions.

“Overturning Roe v. Wade would put state and local leaders on the front lines to protect women’s rights,” she said. “Tonight, we are takings steps to protect a woman’s right to choose.

“I deeply value the doctor-patient relationship and I don’t believe we should be putting our police in the middle of that relationship.”

The vote was 4-2 with one abstention. Larkin, Borowski, Maggy Myers, and Board President Moira Mulroney voted yes.

AnnaMarie Jones and Jake Abel voted no. Both expressed concerns that the ordinance, if passed, would place undue restrictions on the township’s police force.

“I voted “no” primarily because of the uncertainty of what the unintended consequences would be if police are kept from investigating a call -no matter what the issue is,” Jones said. “There could be criminality above and beyond a reproductive issue. That being said, I am in support of women being able to make their own healthcare choices and will stand with my colleagues to find a way to protect women and physicians in our community if Roe is overturned.”

And most residents agree with her, she said.

“Many say it’s too soon. Roe hasn’t been overturned and we have the Delaware County district attorney saying he won’t prosecute women and doctors. I’m prepared to pivot based on the Supreme Court’s future decision, if women and practitioners will become targets, who our governor will be in 2023, and what the majority of constituents are feeling at the time,” she said.

Commissioner Sean Farhy abstained.

Marlene Downing. who serves on the board of the Prolife Union of Greater Philadelphia, was dismayed by the board’s action.

“We are saddened by the township’s decision to come against state law if Roe v. Wade is overturned,” she said. “We don’t believe any city should be excited to be an ‘abortion sanctuary.’ This places a very dark label on Radnor Township where the end of innocent human life will be a main attraction.”

Like Jones and Abel, Downing expressed concern that the ordinance, as it now stands, undermines the township’s police department.

“The fact that local jurisdictions feel comfortable in overturning higher authorities depicts the state of our country. Where is the order? Local police departments being forced to abstain from investigation of criminal activity regarding abortion is very concerning. We should all be concerned,” she said.

A final vote will likely be taken in June before the Supreme Court is expected to rule on Dobbs v. Jackson Women’s Health Organization, a Mississippi law banning abortion after the 15th week of pregnancy.

A leaked draft of an opinion by Justice Sam Alito appears to show a majority of the court is prepared to overturn the controversial Roe v. Wade decision in its ruling on the Dobbs case.

Abortion is certain to be a hot topic in the Pennsylvania gubernatorial race. The Republican candidate, state Sen. Doug Mastriano  (R-Franklin) has called for a ban on abortions in the state with no exceptions for rape or incest. Democrats and their allies are spending $6 million on ads attacking Mastriano’s stance on the issue.

His Democratic opponent, Pennsylvania Attorney General Josh Shapiro, is pro-choice.

Follow us on social media: Twitter: @DV_Journal or Facebook.com/DelawareValleyJournal

Supreme Court Arguments Show Ongoing Divisions on Abortion

With oral arguments before the U.S. Supreme Court (SCOTUS) on Wednesday in a Mississippi case that could determine the future of the landmark Roe v. Wade decision, various Pennsylvania politicians and interest groups weighed in.

The case, Dobbs v. Jackson Women’s Health Organization, would ban abortions after 15 weeks in Mississippi. It’s possible the high court could uphold the law by effectively striking down the 1973 ruling. It established a legal right to abortion and restricted the ability of elected legislators to pass laws regulating the controversial medical procedure.

The court is also considering a Texas law that imposed a “fetal heartbeat” restriction on abortions in the Lone Star state. Justices allowed that law to take effect but may issue a ruling abrogating it later.

Pennsylvanians in the pro-life camp say they fervently hope the court upholds the Mississippi law.

“It’s all about the constitutionality,” said Tom Stevens, president and CEO of the Pro-Life Union of Greater Philadelphia, which held a prayer vigil in front of Planned Parenthood in Philadelphia Wednesday morning to ask God to give the Supreme Court justices “wisdom.”

“We’re hopeful that this could even be an overturning of Roe v. Wade and, as we know, Roe v. Wade is bad law,” Stevens said. “And also, the world has changed since then. With today’s modern technology, we’re able to see clearly that a baby early in the womb is a baby.”

The Planned Parenthood Association of Pennsylvania (PPAP) also held demonstrations around the commonwealth Wednesday.

“We are a state with some abortion access in limited areas, with a limited number of providers,” said Signe Espinoza, PPAP executive director. “The results of this Supreme Court case could put pressure on the entire abortion access network throughout the country — including Pennsylvania.”

Some statewide 2022 political candidates offered their thoughts on Wednesday’s hearing.

“It appears the Supreme Court is leaning toward upholding the rights of the states to set limitations on abortion,” said Kathy Barnette, a Republican Senate candidate. “If that ends up being the final decision by the court, that states have the power to limit and restrict abortion, it would be in keeping with the 10th Amendment of the U.S. Constitution.

Democrats for Life President Monica Sparks addresses a crowd outside the DNC headquarters in Washington, D.C. on November 30, 2021.

“In a culture where we are rapidly moving through the Constitution like a whale moves through a net, where our legislators are interacting with the Constitution as if it’s just a list of suggestions, the court’s decision to actually uphold the U.S. Constitution would be a welcome salve for our limping document. Personally, as someone who was conceived through rape when my mother was just 11 years years old, I will always stand alongside those who stand in the defense of life.”

Charlie Gerow, a GOP strategist who is running for governor, agreed the justices may rule in favor of upholding the Mississippi statute.

“I’m very, very grateful to my birth mother for doing the right thing,” said Gerow, who was adopted. “I’m incredibly blessed she made that decision.”

If he becomes governor, Gerow says he would sign a law to make abortion illegal after a baby’s heartbeat can be heard. A similar law was previously vetoed by Gov. Tom Wolf, a Democrat.

“I’m a great believer in the blessings of life,” said Gerow.

Republican gubernatorial candidate and former congressman Lou Barletta said, “Abortion takes the life of a child, who if it were allowed to be born, would have all of the rights of any other human being. At that point, killing the baby would rightly be called murder. Abortion activists like to say that abortion is ‘healthcare,’ but where does the unborn baby go for healthcare?

“As Americans, we should do all that we can to protect the most vulnerable, and that should include unborn children,” said Barletta. “I am hopeful the Supreme Court will uphold the Mississippi law.”

Board member Patrick Stanton prays with members of the Pro Life Union of Pennsylvania outside Planned Parenthood in Philadelphia.

Republican Dave White, a former Delaware County councilman who is running for governor said, “As one of 14 children in my family, I’m a strong supporter of life. It’s our duty as a society to protect the most vulnerable among us, including the unborn, and I’ll be following this case closely.”

For Democrat Dr. Val Arkoosh, chair of the Montgomery County Board of Commissioners and U.S. Senate candidate, the issue is a woman’s right to choose.

“This case represents the biggest challenge to Roe v. Wade in decades, just a month after the Supreme Court heard arguments over the six-week Texas abortion ban,” said Arkoosh. “As a doctor on the labor and delivery floor, I sat with patients learning hard truths about their pregnancies and facing difficult choices. But they were choices that were theirs to make. I have seen firsthand how important it is that every patient have access to the full range of healthcare choices and the danger that could come with limiting those decisions. It is truly life and death and we need to act to codify Roe v. Wade.”

GOP gubernatorial candidate Guy Ciarrocchi, who is on hiatus from his job as the president of the Chester County Chamber of Commerce said, “I am pro-life. But, whether or not one agrees with Roe v Wade, we should all be saddened to know that millions of babies have died—30,000 each year in our state. The decision focused on a baby’s viability in 1973. At a minimum, we should all agree that viability is now much, much earlier due to scientific advances. So, Roe is now not only bad law, it’s based on very, very outdated science. It is time for Roe to be replaced.”

Montgomery County Commissioner Joe Gale, a candidate for governor, promised to “protect every child from the moment of conception. Allowing the most defenseless and voiceless among us to be murdered in the womb is unacceptable, unethical, and unforgivable. Under my leadership, Pennsylvania will be a sanctuary state for innocent unborn human life.”

A spokesman for state Sen. Jake Corman (R-Centre), who is also running for governor, said Corman is “pro-life and a supporter of Pennsylvania’s Abortion Control Act and has worked to strengthen the law. With advances in medical care, he supports doing all we can to protect the sanctity of life.”

Dr. Nche Zama, a cardiothoracic surgeon who is running for governor said, “All human life is precious, including the unborn, and must be cherished and protected.”

“While I am not supportive of unsustainable, and historically-ineffective, draconian and vigilante policies such as we have witnessed in Texas, I understand that there are extremely rare cases where an abortion is medically indicated,” said Zama,  Republican. “Like many clinicians  I do believe that a woman faced with a decision to commit an abortion is really crying out for help and no policy on this matter can ever be effective if it is punitive, does not address root cause, and fails to consider her an important stakeholder. She needs counseling and other resources that can enable her to appreciate the alternative of preserving human life including the option of adoption. What the general public may not be aware of is the long term adverse remorseful psychological impact on a woman after an abortion. By the same token the woman who has rejected the abortion alternative should never feel abandoned by society as she struggles socially and economically to raise the child. To be effective and meaningful our commitment to the preservation of human life must be holistic and not only to satisfy a fleeting agenda.”

In contrast, Attorney General Josh Shapiro, the only Democrat running for governor so far, released this statement:

“The Mississippi case before the United States Supreme Court could nullify the law of the land set by Roe v. Wade, and rob women of their constitutional right to control their own bodies. The extremists behind these laws won’t stop with abortion. A decision upholding Mississippi’s law would threaten many rights Americans have come to depend on, including the right to marry and access to contraception, based on a radical, narrow-minded, and unilateral reinterpretation of the Constitution. My office filed an amicus brief in this case supporting a woman’s constitutional right to an abortion, and we will continue to use the full force of this office and decades of precedent to defend that right.”

Follow us on social media: Twitter: @DV_Journal or Facebook.com/DelawareValleyJournal