An Emanation in search of a Penumbra

Coulter, Ann

Answer me this: if the night-tolife position on aborn is such a loser at the polls, why are liberals so terrified that the court will overrule Roe v. Wade?

All that happens when Roe is overruled is that abort laws will be decided by popular election rather than judicial fiat (And half the country can stop pretending to see something in the Constitution that doesn't exist, which has got to be a relief even to the most fanatical abortion supporter.)

When it comes to elections, we're told that the pro-life position is slaughtering Republicans because huge, vast majorities of Americans enthusiastically support babykilling. But when it comes to overruling Roe, we're led to believe that the same vast majorities of America will immediately vote to outlaw abortion and may even run out and start murdering women with their bare hands. So which is it? This is the sort of logical lunacy that emerges in any topic vaguely touching on abortion, orin the favored parlance of the lunatics-"choice." The whole abortion dialogueespecially concerning the make-believe constitutional right thereto-is like listening to Clinton explain his relationship with Monica.

At the risk of belaboring the obvious, there is a conspicuous absence of an abortion clause in the . Now, admittedly, a lot of the minutiae of cI nal rights are somewhat drawn out interpretations of clauses and structures that do exist. The Framers thought we couldextrapolate from the basics. That's what we have justices for.

The Emperor's Clothes

We're supposed to figure out, for example, that "speech" would include the Internet, even though they didn't have an Internet back in the recent post-revolutionary days. (They were waiting for Al Gore to take the initiative to create it.) But the "right" to abortion is derived from "penumbras and emanations" and there's no Penumbras and Emanations Clause either.

Not only does the emperor have no clothes, but there's no emperor. This isn't an emotion, it's a fact.

And yet in order to win easy either claim to see the emperor and his new clothes, or refuse to express an opinion on the emperior and his clothes. Clarence Thomas - pardon, the Beloved Clarence Thomas - for example, was pressed repeatedly by senators on whether he would vote to overturn Roe.

Sen. Patrick J. Leahy (D.-Vt.) explained their demand: "Let me make this clear, Judge Thomas, in recent years we have danced around the question of where nominees stand on a woman's fundamental right to abortion. . .This is one of the burning social issues of our time." (Perhaps the "right" to abortion is located in the Burning Social Issues Clause of the Consitution.) Thomas in turn, repeatedly refused to state a position on Roe: "I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case." Still, they sicced that lying woman on him.

President Bush's other nominee, David Souter - David the Ridiculous - said the same thing of course, and you know where that got us.

Unlike Republican nominees to the Supreme Court, like Souter and Thomas, Clinton-Gore nominees have been forthright in their support for the nonexistent Penumbras and Emanations Clause-and even other novel constitutional hallucinations to justify a right to abortion. Their judicial nominees openly proclaim their support for the "right" to "privacy" discovered in Roe-meaning they see the hallucination.

Especially beloved during her confirmation hearings was Ruth Bader Ginsburg, who practically spoke in tongues about abortion. Ginsburg claimed that abortion rights were rooted not only in the Privacy Penumbra but in the Equal Protection Clause. In a bizarre feminist argument she explained that regulation of abortion treats women differently because of their gender (evidently, the Constitution permits fathers to kill their babies).

This struck many observers as just the teensiest bit resultoriented. Under Ginsburg's logic, a law against exposing breasts or a law against exposing what Bill Clinton once exposed in a Little Rock hotel room would be an Equal Protection violation, since these laws burden only one gender. Also Ginsburg's position was not particularly respectful of "precedent"-another liberal talisman in the era of Roesince the Supreme Court has specifically rejected Equal Protection arguments against "discrimination" based on pregnancy. Twice. First, in the 1974 case of Geduldig v. Aiello and then again in the 1977 case of Gilbert v. General Electric Co.

No one bothered to mention this to Ginsburg. In fact, no United States senators had any problem with Ginsburg's logic. So traumatized were they by the Hill-Thomas hearings, the senators were thrilled to have any woman appear before them to utter anything other than perjurious accusations against an innocent man.

Not one senator ever bothered to follow up Ginsburg's bizarre contention. Indeed, Sen. Charles Grassley (R-Iowa) was nauseatingly effusive in his praise for Ginsburg.

Devotion to the emperor's new clothes remains unflagging in the law schools. In a review of John Anthony Maltese's book, The Selling of Supreme Court Nominees, that was published in the Yale Law Journal a few years back, the reviewer matter-of-factly summarized the author's theory about judicial nominations thus: "Maltese sees in the Ginsburg and Breyer nominations a route by which Presidents can circumvent the recurring imbroglios of the past. Candidates who are highly qualified and ideologically moderate, he suggests, generally avoid bruising confirmation fights and are approved by a secure majority in the Senate."

"lH]ighly qualified and ideologically moderate"? That means one thing: Nominees must baldly state that they have the Penumbras Clause delusion or face hideous charges of trying to murder women, segregate blacks, create a police state, and censor speech-to paraphrase Sen. Teddy Kennedy's "Judge Bork's America" speech.

Republican presidential candidates who try to straddle the emperor's new clothes question invariably come up with the loopiest stances of all. George Bush Senior and old "Electable" Bob, for example, denounced litmus tests on the one hand, but, on the other, made a point of announcing that they themselves are pro-life. Even stranger-both endorsed the position that judges should believe in "the sanctity of innocent human life."

With all due respect to big vote-getters like these guys, it has never been clear to me why I should care that their judicial nominees are themselves pro-life. This is not only peculiar but rings of a religious test. I don't care if a judge wants to personally perform abortions on his dining room table (well, maybe that's a little creepy). But the point is, what I want to know-and what, it seems to me, every logical person should want to know-is whether judicial nominees see mirages in the Constitution.

Candidate W has said the only "test" he would impose on his judicial nominees would be this: "whether or not judges will strictly interpret the Constitution." That's more than will actually be needed to overturn Roe.

Judicial nominees can have wide-ranging, formless, undisciplined interpretations of the Constitution and still see that there is nothing in the Constitution remotely touching on abortion. I'd be happy if W would just promise to ask them: "Do you often hallucinate when contemplating the Constitution?" If "political realities" dictate that Republican candidates and judicial nominees cannot publicly denounce the left's make-believe clauses in the Constitution, why not go whole hog and make up some of our own? They can have a Privacy Clause, we can have a Sanity Clause. I think it's right there in the penumbras.

Copyright Human Events Publishing, Inc. Jul 23, 1999
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