January 22, 2005

# What if Legislatures Were Allowed to Legislate?

# Abortion has gone from "the Evil of the Age" to heralded Constitutional right: is this a sign of progress?

Dear Colleague:

From the front page of the *New York Times*, an article headlined "THE
EVIL OF THE AGE" includes the following passage, "There is a systematic
business in wholesale murder conducted by men and women in this City,
that is seldom detected, rarely interfered with, and scarcely ever
punished by law."

The "evil" the *Times* was speaking of is abortion, in an article in
1871. In the early 1870s, the *Times* stopped accepting ads for
abortionists and began a campaign against the industry. New York State
soon instituted laws outlawing the procedure, which remained unchanged
until the 1960s.

Fast forward to December 12, 2005 for the screaming headline in *New
York Magazine* touting New York as "The Abortion Capital of
America."[^1] Today, New York is an infamous model of liberal
abortion-on-demand policy. There are no minimal measures such as waiting
periods or parental notification laws (unlike most other states), and
New York taxpayers foot the bill for abortions for low-income women. As
Christina Fadden Fitch of the New York State Right to Life Committee put
it, "It's really sad. It's like throwing abortion at the poor."

The abortion machine in New York remains stuck at full throttle with no
brakes. The result is that in some parts of the New York, the abortion
to birth rate is one to one.

Among some populations, this kind of abortion-on-demand policy has
extended to what could be described as an unspoken *duty* to abort,
especially in the case of persons with disabilities: a recent
*Washington Post* article notes that some studies suggest that 80 to 90
percent of children diagnosed before birth with Downs Syndrome are
aborted.[^2]

While New York citizens are free to pass laws subsidizing a culture
which equates abortion with every other form of health care -- to the
point where abortions are as common as childbirth -- citizens of every
state in this union are prohibited from democratically adopting the
opposite legislative philosophy: that abortion should be prohibited, and
that their state is one which can thrive without it.

The United States of America is the world model of representative
democracy. But when it comes to abortion, representative democracy is
thrown out the window in favor of judicial fiat. *Roe v. Wade* mandated
legal abortion on every state through all nine months of pregnancy.[^3]

The hands of legislatures across the country remain tied despite the
fact that the overwhelming majority of Americans---75% according to a
recent Gallup poll[^4]--- believe abortion should be "always illegal,"
or only "sometimes legal."

Moreover, the sad irony is that the scope of *Roe v. Wade* has far
surpassed that which was intended by its author. *Roe* author Justice
Harry A. Blackmun's personal papers reveal that he imagined *Roe* would
have a much more limited effect than what has played out in American
jurisprudence.[^5]

Blackmun's papers show that when he reviewed Georgia's abortion
law---which outlawed abortion except when the mother's health was
endangered, when the pregnancy was the result of rape, or when the fetus
had a severe defect---Blackmun felt this was a "fine statute \[that\]
strikes a balance that is fair."

Blackmun's personal papers also contain a public statement, written to
be released along with the *Roe* decision, stating that the court was
*not* giving women "an absolute right to abortion," nor was it saying
that the "Constitution compels abortion on demand." The statement was
never issued.

In spite of the intent of *Roe*'s architects, America persists in its
dubious distinction as the country with some of the most liberal
abortion laws in the world, which is plainly contemptuous to the fact
that **most Americans would not have it that way.**

There is something very wrong when a government "of the people, by the
people and for the people," ties the hands of its citizens so they
cannot enact representative laws on one of the gravest issues of the
day.

Sincerely,

> Mark E. Souder

[^1]: Ryan Lizza, "The Abortion Capital of America; As the pro-life
    movement intensifies nationwide, New York contemplates its history
    and future as a refuge," *New York Magazine*, December 12, 2005.
    Available at
    <http://newyorkmetro.com/nymetro/news/features/15248/index.html>
    (last visited January 23, 2006).

[^2]: Patricia Bauer, "The Abortion Debate No One Wants to Have:
    Prenatal testing is making your right to abort a disabled child more
    like 'your duty' to abort a disabled child," *Washington Post*,
    October 18, 2005 at A25.

[^3]: Even in the third trimester, a state must allow abortion where a
    woman's "health" is endangered. *Roe v. Wade*, 410 U.S. 113, 165-66
    (1973). The companion case to *Roe*, handed down the same day,
    defines health as \"all factors - physical, emotional,
    psychological, familial, and the woman\'s age - relevant to the
    well-being of the patient." *Doe v Bolton*, 410 U.S. 178, 193
    (1973).

[^4]: CNN/USA Today/Gallup Poll. Nov. 11-13, 2005. Available at
    <http://www.pollingreport.com/abortion.htm> (last visited January
    23, 2006).

[^5]: "Roe Ruling: More Than Its Author Intended," *L.A. Times,*
    September 14, 2005.