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The writing's on the wall

By Robert S. Sargent Jr.
web posted September 8, 2003

"Anytime the fetus is recognizable as a person it chips away at the foundation of Roe v. Wade" (Sondra Goldschein, Mississippi ACLU)

On August 21, the Mississippi Supreme Court ruled that under Mississippi law, wrongful death claims might be filed on behalf of a fetus. In 66 Federal Credit Union, et al v. Tracy Tucker, Ms. Tucker alleged that an attempt to repossess her car, and a negligent diagnosis of a vaginal itching, led to the miscarriage of her 5-month-old fetus. The question before the Court was, can a wrongful death action be brought on behalf of a non-viable fetus? In the majority opinion the justices wrote, "…we hold that the wrongful death statute (in Mississippi) includes an unborn child that is ‘quick' in the womb as a ‘person.'"

As precedent, the Court cited Rainey v. Horn, which held that "…an unborn child that has reached the prenatal age of viability, when it is capable of a separate and independent existence from its mother…is a person." Then they cite a Georgia case in which "…an action for the wrongful death of an unborn child may be maintained if the child was ‘quick' at its death. Now a fetus that simply "moves" in the womb is a person. One more problem: Roe v. Wade.

To get around this, the Court cites an Illinois case, which ruled, "…a pregnant woman who chooses to terminate her pregnancy and the defendant who assaults a pregnant woman, causing the death of the fetus, are not similarly situated." In other words, if a woman wants a baby, the fetus is a person, but if she doesn't, then the fetus must be terminated to protect her "privacy." Neat dancing by the Justices!

In a concurring opinion, in order to be more precise, one Justice wrote, "…we should further extend the majority's protection to include a pre-viable fetus from the point of conception. The point designated as ‘quickening' does not provide such a bright line." We have gone from "viability," to "quick," to the "point of conception" in one case!

We now need to examine the dissent by a Justice McRae. He wrote: "One has to question the nature behind the majority's opinion as an attempt to limit and even do away with Roe v. Wade...The majority fails to honor precedent…and instead chooses to create new law which will no doubt have negative effects." And: "There is no justification for the majority's abrupt change of view which hereafter creates wrongful death rights for the death of an unborn fetus in the first trimester of pregnancy." And: "We do not need to consider Georgia precedent, because we have our own precedent."

All of McRae's criticisms are of techniques used by the liberal Warren and Burger Courts. I predicted in these pages in a column, Why Liberals Should Embrace Federalism (ESR 11/4/02) that those techniques perfected by the liberal courts would someday be used against them, and that's what happened in Mississippi. Justices making law ("The majority chooses to create new law" - a common technique of the Warren Court). "Finding" new rights in the Constitution ("[The majority] creates wrongful death rights" - think of Justice William O. Douglas "finding" rights in the penumbras of the Constitution). Citing irrelevant opinions to justify their actions ("We do not need to consider Georgia precedent" - think of liberal Justices citing European and world court opinions, or Justice Taney in Dred Scott citing non-legal documents like the Articles of Confederation, or irrelevant state statutes).

The problem for liberals, as I see it, is that they are championing the federalization of abortion. The law applies to all states. But the writing is on the wall: What happened in Mississippi will continue to happen until Roe v. Wade will someday be totally chipped away. At that time, it will be a federal crime to perform abortion. What's the alternative? The federal system mandated by the Constitution. In this system where moral issues are decided democratically by state legislatures, at least some, maybe a majority, of states would have legalized abortion. Isn't this better for liberals than to wait around for the inevitable chipping away, meanwhile going through bitter, partisan, battles in the Senate nomination process?

Someday I hope that liberal Senators will join with conservative Senators to try to find judges that strictly apply the law. That would mean overturning Roe, but it would also guarantee that liberal states would have liberal statutes.


Several weeks ago in my column, North Carolina: A pickup of a Senate seat? I stated that Marc Siegel, the Communications Director of the NC Democratic Party did not reply to my invitation to respond to the column. It turns out he was out of the office that week, and their automatic-reply didn't work. I again asked him if he'd like to reply, and here are his pertinent points: "Should he choose to run for re-election, U.S. Senator John Edwards is the clear favorite. If Sen. Edwards does not decide to run for U.S. Senate, NC Democrats will have a talented bench of candidates to choose from. It's not surprising that the GOP would try to spin an exciting Democratic movement – Sen. Edwards' presidential candidacy – into a negative, but frankly, the effect of Sen. Edwards' presidential candidacy on the U.S. Senate race is negligible. If anything, it gets voters excited about the 2004 races long before usual…. In November 2004 either Sen. Edwards will retain his seat, or another Democrat will take his place. And the GOP will have to stop fraudulently spinning, at least for one day." (I'd like to point out, as I wrote in the column, that it is prominent NC Democrats who are complaining about Edwards' indecision about committing to run for U.S. Senate.)

Robert S. Sargent, Jr. is a senior writer with Enter Stage Right and can be reached at rssjr@citcom.net.

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