Taney, Ginsburg, and the Fetus as the New Dred Scott

 

On Monday the U.S. Supreme Court issued a ruling in Box v. Planned Parenthood of Indiana and Kentucky, with Justice Ruth Bader Ginsburg repeating the error of Chief Justice Rober B. Taney in the Dred Scott decision of 1857. In her decision regarding whether fetal remains should be treated as medical waste, or cremated as required by the law under consideration, Justice Ginsburg took strenuous issue with Justice Thomas’ characterization of pregnant women as, “mothers.” This harkens to the infamous Dred Scott decision, where Chief Justice Taney ruled that no black, slave or free, could claim U.S. citizenship. The parallels are as striking as they are revolting.

In both decisions, Dred Scott and Box v. Planned Parenthood, opinions moved jurisprudence in the wrong direction, breaking with either previous court decisions, or with the Constitution itself. Prior to Dred Scott, Article 1 of the U.S. Constitution treated blacks in slavery as 3/5 a person for purposes of apportioning seats in Congress. So they were 60% of the way to personhood status under the law. The Dred Scott decision stripped them entirely of personhood status and went further to encompass free blacks as well.

In Roe v. Wade the justices declared that they could not tell definitively when human life began, and agonizingly deployed the medieval concept of Quickening in defense of this nebulous boundary between being human and non-human–a boundary that science has NEVER recognized at all. The product of human fertilization is a new human from the moment of fertilization. In the Box decision this week Justice Ginsburg took direct aim at Justice Thomas’ characterization of pregnant women as mothers when she said, “(A) woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’.”

So, blacks are not persons when we wish to own them as slaves, nor are even free blacks persons when their humanity points to the humanity of blacks languishing in chains. Similarly, pregnant women who wish to abort their children are not mothers if the humanity of wanted babies and motherhood status of the women bearing them might point to the humanity of unwanted babies and the motherhood status of the women seeking their demise. Again, and again, and again, we repeat the same tragic errors of history. Scores of millions suffer and perish because of that error. A singular error. It is this:

Either we see personhood as an intrinsic status that comes with being a human animal/organism, a human being, or we treat personhood as a status conferred on certain human organisms by an intellectual and political elite. We consistently choose the latter. There is no other explanation for the Dred Scott decision, or the Plessy v. Ferguson decision of 1896 that upheld racial segregation in the South (The Democrats “do-over” for the Civil War and its results). There is no other explanation for the notorious Buck v. Bell decision that upheld the rights of the states to forcibly sterilize the developmentally disabled. There is no other explanation for the Nazi Nuremberg laws that stripped Jews of the personhood status, or for the infamous Koramatsu decision that upheld the right of the government to herd Japanese-American citizens into concentration camps during war based solely on their ethnic ancestry.

And then came Roe, Doe, and Casey.

We live in an age of tragic make-believe. Men are women if they believe hard enough. Women are men if they believe hard enough. One may wish away the biological reality evident in the mirror when one steps out of the shower. So, too, can one magically wish away the human identity and status of the child in the womb, and even one’s own motherhood status. In both, we engage in surgical mutilations to ensure the delusional ideation. It’s science denial on steroids.

Pope Benedict XVI had a prescient observation some years ago, one that goes a long way to explaining these tragic errors we can’t help repeating as a people:

“Where doubt over God becomes prevalent, then doubt over humanity follows inevitably. We see today how widely this doubt is spreading. We see it in the joylessness, in the inner sadness, that can be read on so many human faces today. Only faith gives me the conviction: it is good that I exist. It is good to be a human being, even in hard times. Faith makes one happy from deep within.“

People such as Justice Ginsburg don’t see humanity as a fundamental good. They see it as a status, and themselves as the arbiters of who is granted that status. So this week’s Box ruling will go down as a split decision. On the one hand, the court upheld the part of the law in question that requires cremation of aborted fetal remains. That takes us a significant step toward recognizing the fetus as more than mere medical waste. On the other hand, Justice Ginsburg has staked out the same ground as Taney and the majority in Dred Scott.

Finally, it was never the vision of the Founding Fathers that God, and Judeo-Christian anthropology be banished from the public square. Freedom of religion was never in their minds the same as freedom from religion. It is why they set forth the idea of unalienable rights that come from a “Creator,” whom they identify as, “Nature’s God.” It is why they stated that the whole purpose of government is to secure the rights that come from God, which man cannot take away. It is why they further stated that whenever government becomes destructive of that purpose it is the right of the people to alter or abolish that government, and to elect new government that will be faithful to the end of securing the rights to life, liberty, and the pursuit of happiness–the fundamental rights that come from God.

Taney and Ginsburg are two justices who committed themselves to being destructive of those ends. Those who cheer the words of Ginsburg are the very people hostile to religion, with doubts about God, and it shows in their doubts about humanity, beginning with their own.

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Alabama, Abortion, and a Modern Parable of the Two Sons

“What is your opinion? A man had two sons. He came to the first and said, ‘Son, go out and work in the vineyard today.’ 29He said in reply, ‘I will not,’ but afterwards he changed his mind and went. 30The man came to the other son and gave the same order. He said in reply, ‘Yes, sir,’ but did not go. 31^* Which of the two did his father’s will?” They answered, ‘The first.’ Jesus said to them, “Amen, I say to you, tax collectors and prostitutes are entering the kingdom of God before you.”

The First Son
Last night the governor of Alabama signed into law the most restrictive abortion legislation in the nation, all but outlawing the procedure, and certain to set up a Supreme Court showdown. Aggressive pro-life legislation has been on the march this year, as well as aggressive and horrific pro-death legislation, expanding abortion into infanticide. The common denominator in all of this is President Trump. He has shifted the composition of the Supreme Court with two appointments, and filled hundreds of seats on the Federal Bench with conservative judges. His U.S. Attorneys and Attorneys General are no enemies of life.  And then there are his executive orders, his reinstatement of the Mexico City Policy, his defense of conscience protections for people of faith that were savaged under Obama, his full-throated embrace of the pro-life movement.

All of this from a billionaire with a bad-boy past, a reformed playboy who could have spent the waning years of his life steeped in luxury and the pursuit of libertine ways.

Instead, Donald Trump lives with his wife of fifteen years in the world’s largest fishbowl, along with his youngest son. Thrice married, he does not cut the squeaky-clean family man image of a Barack Obama, Jimmy Carter, or the Bushes. One would have expected sterling pro-life efforts from such men so devoted to their first and only wives, and their children. Instead, the efforts ranged from tepid to outright hostility. The reformed playboy has been quite the surprise for many.

The Second Son
Supreme Court Justice, Bret Kavanaugh, is Irish Catholic, a graduate of one of the nation’s most prestigious Catholic high schools, Georgetown Prep, the perfect church-going, soup kitchen-volunteering family man. He is new to the Supreme Court, and the justice everyone is keenly watching; perhaps because he is the hand-picked successor of another Irish Catholic justice, Anthony Kennedy, whose rulings in many areas haven’t squared with the moral world view of his faith.

What is of concern to pro-life advocates is Justice Kavanaugh’s rock-solid regard for Stare Decisis, the legal principle that regards previous decisions as strong precedent for judging future cases with similar issues. There have been a string of decisions in the wake of Roe v. Wade that have all buttressed Roe. From that perspective, a challenge to the Alabama law may find sound footing in a court where Kavanaugh has assumed the swing-vote seat of his old mentor. But there is hope.

When asked during his confirmation hearing what he thought the greatest Supreme Court decision was, he enthusiastically offered up Brown v Board of Education. What is so remarkable in his answer is that Brown is a rare case of the Supreme Court reversing one of its prior rulings, specifically, Plessy v. Ferguson, the notorious case that upheld the institution of racial segregation. How to square the full-embrace of Stare Decisis with such a response?

The only answer is the obvious answer. There are some institutions that are so intrinsically evil that no law, no legal principle can be used to shield them without making a mockery of justice, of the law, of its practitioners. Such evil institutions strip the innocent of their human dignity and freedoms, and in the case of abortion, their very lives.

Our second son, like the first,  has been sent by his father into the vineyard to work. Our second son has had advantages over the first. He has had the fullness of truth revealed to him through his Catholic upbringing that the first has not enjoyed in his churches that embrace contraception and abortion. Our second son has also signaled that he has the capacity to break with bedrock jurisprudence to defeat malignant evil when malignant evil would use bedrock jurisprudence as both sword and shield.

So, in the not-so-distant future, how will our second son acquit himself? Will he, as with so many sterling family men before him, shrink from the will of the father? Will he go down in history as having performed less than a reformed playboy billionaire?

None of us is perfect, and President Trump is no exception. However, his late, “Yes!” to the will of the father is the stuff of the good thief on the cross and the first son in Jesus’ parable, a son with plenty of warts doing the will of his father. A work in progress.

It is the second son who remains untested. It is he who is in need of more prayerful support than the reformed playboy billionaire. The pressures on him will be greater than anyone can imagine. His presence on the court is the result of the first son’s ongoing obedience to the father’s will.

May he see that, and act accordingly.

 

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