when pigs fly … expect the unbelievable

Archive for February 2016

Many people believe that Roe v. Wade is the most politically sensitive US Supreme Court decision in the history of this country.  While I believe that it is politically sensitive, and certainly well debated on every street corner, I question that it is the most politically sensitive in the history of the Court.  Never mind, though.  I admit that it is a politically sensitive decision.

The Roe case arose out of a Texas statute that prohibited abortions except in the event that it was necessary to the medical purpose of saving the life of the mother.  In Roe, a young attorney, Sarah Weddington, represented a woman who wanted an abortion.  The allegation made in the litigation was that the statute was unconstitutional.

In the ultimate hearing before the US Supreme Court, Justice Harry Blackman, writing the majority opinion and joined by six (6) other justices, ruled that the Constitution permits a woman to decide for herself whether to terminate her pregnancy.  The limiting caveat that the Court imposed was that the state had the ability to regulate abortion in order to safeguard the health of the woman and to maintain medical standards.  The Court went further to say that when a fetus becomes viable (meaning able to live outside the womb) a state may prohibit abortions except those required in order to preserve the life or heath of the mother.

The Court’s discussion of Roe was acrimonious, which belies the 7-2 vote.  Justice Byron White, in dissent said:  “I find nothing in the language or history of the Constitution to support the Court’s judgment…its judgment is an imprudent and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”  Justice Rehnquist, also dissenting, said that the majority based its decision on “a supposed right that was completely unknown to the drafters of the Constitution.”

Obviously, the Court could not have gotten to the Roe decision without Griswold v. Connecticut. recognizing the right to privacy.  The majority extended the right of privacy to “encompass a woman’s decision whether or not to terminate her pregnancy.”

A few notes on Sarah Weddington, a hero of mine.  She was 27 years old when she argued and won the Roe v. Wade case before the US Supreme Court.  She remains the youngest person in the history of the Court to argue and win a case before the Court.  She is author of A Question of Choice (1992).  (As an aside, she was a law school classmate of Senator Kay Bailey Hutchinson.)

As a result of Sarah Weddington’s efforts, Jane Roe (Norma McCorvey) was granted a great gift — the gift to be “let alone.”

Obviously, McCorvey really didn’t want to be let alone.  She wrote a tell-all (I am Roe, 1994) about her life and lesbian relationship with her long-time partner, her conversion to Christianity, and her belief that, as a 21 year old, having become pregnant for the third time, she found herself a “pawn” in the hands of glory seeking litigators.

Clearly, this does not end the discussion of Roe v. Wade.  Stay tuned…



William O. Douglas, Supreme Court Justice from 1939 -1975 said “The right to be let alone is indeed the beginning of all freedom.” If you know me well at all, you know that the “ditch I’ll die in” is that of reproductive rights — as in my right to reproduce, or not, is none of your business.  Not only is it not your business, it is not anyone else’s either -particularly not the government’s business.

The beginning of privacy as a legal structure literally began in the  US Supreme Court case of Griswold v. Connecticut (1965).  Trachtman captioned it “the unwritten right of privacy.”  It is indeed this case that created privacy as an individual right that each of us can enjoy.

A short history:  In 1879 Connecticut passed a law outlawing contraception.  (An interesting aside:  this law was sponsored by P. T. Barnum, of circus fame, then serving as a state senator in Connecticut.) It made assisting or counseling anyone to use “any drug, medicinal article or instrument” for the purpose of preventing conception a crime.  Interestingly, it was rarely enforced but to many it was offensive.  So a group of individuals in Connecticut sought a test case.  It didn’t take long before a test case was created.

In 1953, Estelle Griswold became the executive director of the Planned Parenthood League of Connecticut.  In 1961, she and Dr. C. Lee Buxton, a professor of obstetrics and gynecology at Yale University, began providing contraceptives at a small clinic that Griswold had procured near the Planned Parenthood office.  The clinic was opened only a few days before it was raided and Griswold and Buxton were arrested and fined $100.  They were delighted!  The clinic, opened in early November, was closed on November 9 of the same year.

Of course, when you seek a test case, you appeal if the decision you get is not the one you want.  On June 7, 1965, the US Supreme Court issued its decision, voting 7-2 in favor of Griswold and Buxton.  On and after this date, married individuals could legally obtain birth control in Connecticut.

Since we are currently considering the unexpected demise of US Supreme Court Justice Antonin Scalia, I want to ask:  how would Justice Scalia have voted in this situation?  (Justice Scalia was nominated by President Reagan, and came to the Court in 1986, twenty years after the Griswold opinion was issued.)

I think the answer is an easy one.  Justice Scalia was a fan of textualism and originalism in constitutional interpretation.  As you may know, there is no right to privacy in the US Constitution, so Justice Scalia would not have joined with any of the Justices who, in 1965, found that there was.

Justices who are not as conservative in issues of constitutional interpretation as Justice Scalia believe that the constitution should be considered and its intent considered but they also have a duty to “stretch” the language of the constitution if justice requires.  These justices consider the constitution a “living” document, capable of changing as the world changes.  Justice Douglas, who wrote the majority opinion in Griswold, was definitely in the later tent.  He believed that the constitution can be expanded to protect individual rights.

And so, here come “penumbras” and “emanations.”  Since there is no mention of “privacy” in the US Constitution and yet the majority of justices desired to protect the privacy of married couples in their reproductive decisions, Justice Douglas wrote that the right of privacy was implicit in the various guaranteed given to us in the Bill of Rights.  And here is how he stated it:  “the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”  (He reasoned that the 4th amendment — outlawing unreasonable search and seizure, and the 5th — providing a right against self-incrimination, both implied a personal “zone of privacy.”

So the Court, in Griswold, created a fundamental right to privacy — and a path of reason to allow future courts to reach ends that seemed previously “unreachable.”  And it created the “litmus test” for each court nominee:  would you interpret the US Constitution broadly or strictly?

So, in thinking about your “label” and how you feel about “big issues” what do you think about all this?  Are penumbras and emanations over-reaching?  Or are they necessary as our world changes?  Have you considered whether you are a “strict constructionist” or not?  (Most strict constructionists are considered “conservative” — but is that a fair label?)

We will talk about this more in the next post.

The TV is on CNN and I am listening to “W” speak on behalf of Jeb in South Carolina.  “W” just quoted his dad:  “Labels are for soup cans.”  Ain’t it the truth?

We are in the middle of some contentious election parlays and everyone has a label, but I think that Bush the Senior makes a lot of sense.  What I would call “conservative” you might call “liberal” or “idiotic” or something worse.

I want to spend several posts on “big issues” — issues that, if you consider them — may change your own ideas about your own labels.  I’d like to take credit for this concept but I am walking in the footsteps of Michael G. Trachtman (The Supremes’ Greatest Hits, Sterling Press, 2009) and James W. Ely, Jr. (The Guardian of Every Other Right, Oxford University Press, 2008).  These two (2) men have written several books each, but the ones I am focusing on are these two (2).

I would like to ask you to follow me on this series of “big issues” posts — which I am going to post for my own pondering about labels and issues and what they all mean to me — and hope that you may find insight into not only your “label” but your ideas on “big issues.”

Tune in…

My spouse loves impressionistic art — particularly Monet and Manet as well as our own Oktibbeha County and internationally renown George  (Tommy) Thurmond. (I generally  prefer cubism.) This morning we were watching a documentary on French impressionists and I was introduced to a woman impressionist, Marie Braquemond.

When I think of women impressionists, I think only of Mary Cassatt, a premier American impressionist. Marie Braquemond is worth a look. Google her.

My apologies to Laurie Teague and my other artist and art history friends.

The Associated Press has reported that Army General Mark Milley and Marine General Robert Neller believe that women should be included in the requirement to register for the selective service at age 18.  Navy Secretary Ray Mabus and Army Acting Secretary Patrick Murphy say the issue should be discussed.  These positions were revealed at a hearing before the Senate Armed Service Committee earlier this week where, among other things, it became obvious what deep reluctance the Marine Corp leadership had (and has) to bringing women into certain fields of duty, namely infantry, armor and special ops.

In December of 2015, Secretary of Defense Ash Carter ordered all combat jobs in all services open to women; he also vowed that no standards would be lowered to make way for women.

Apparently the Marine Corp has cited studies showing that combined-gender units are not as effective as male-only units.  Boy would I like to review those studies.  I wonder if they were performed by an independent agency or by the Corp itself? And I wonder what the result of a study of the effectiveness of female-only versus male-only units would be?

Last week, SB 2093 was introduced in the Mississippi senate.  This bill is casually known as the “pastor protection” bill.  Under this bill, clergy are not obligated under the law to perform a marriage ceremony for any couple whose marriage would violate the clergy’s religious belief or policy.  It is interesting that our senators believe this is necessary.  I do not believe that any clergy is forced to marry anyone, anywhere.  Am I wrong?  I know that clergy in my own community of believers (Episcopal — you know, the gay-lovers that were kicked out of the Anglican Communion last month) require couples to attend counseling and only after the clergy is satisfied will he determine to marry the couple.  Pastors don’t need protection, for God’s sake!

February 2016
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