defective because, though it contained an exception for cases where the mother’s life would otherwise be endangered, there was no exception for adverse effects on the mother’s health. Even physicians who used the procedure said it was never necessary to preserve health, but the Court insisted on an exception that entirely swallows the rule: an abortionist will always say that this procedure is necessary to the woman’s mental or emotional well-being.
Stenberg
was by no means the end of the Court’s campaign.
Hill
v.
Colorado
(2000) upheld a Colorado statute making it criminal to approach within 8 feet of a person seeking an abortion or within 100 feet of the entrance to an abortion clinic in order to protest or persuade against abortion. Because the ban was based on the content of the message, the Court’s previous decisions showed it to be invalid. The statute would not have been countenanced for a moment had the speech been made against a war or in support of a strike. As a dissent noted, “There is apparently no end to the distortion of our First Amendment law that the Court is willing to endure to sustain this restriction upon the free speech of abortion opponents.” Yet Justice Stevens stated with satisfaction in
Stenberg
that “the central holding of
Roe
v.
Wade
… has been endorsed by all but 4 of the 17 Justices who haveaddressed the issue.” Since there is no constitutional support for
Roe
, that fact is less a testimony to the merits of the decision than proof that a large majority of the Justices are willing to jettison the Constitution when their own sympathies or ideologies are in play. Abortion has become a sacred cause for the Court, before which neither the Constitution nor the Court’s previous decisions can stand. The abortion right has survived many changes in the Court’s personnel and, though it will never gain general public assent, abortion virtually on demand and for any reason seems secure for the foreseeable future. It is a central part of the New Class’s creed.
Substantive Equal Protection and Homosexuality
Substantive due process is only one technique of activism in the Court’s repertoire. More recently, the Fourteenth Amendment’s guarantee of equal protection of the law, designed to protect the newly freed slaves after the Civil War, has become another uncontrollable source of judicial power. Since all law makes distinctions, it is possible to say that all law denies equal protection to persons on the unfortunate side of the line that has been drawn. To invalidate all such laws would make anarchy a constitutional requirement. The Court, therefore, has chosen which interests are subject to equal protection analysis and which not. Once again, the Court, rather than the legislature, makes the law.
In the name of equal protection, the Court may be on the verge of another extra-constitutional venture – thenormalization of homosexuality. Nothing in the Constitution speaks to the question. Historically, homosexual conduct has been left to the moral decisions of the people and their elected representatives. In
Bowers
v.
Hardwick
(1986) the Court narrowly held, in keeping with the longstanding constitutional understanding, that a state may make homosexual sodomy a criminal offense. The vote was only five to four, however, and one member of the majority later publicly regretted his vote.
The dissent by Justice Blackmun, which had come within a hair of being the majority opinion, stated with startling boldness and clarity that the informing principle of the Constitution is radical individual autonomy. Chastising the majority for arguing that prior privacy right cases related to the protection of the family, Justice Blackmun stated: “We protect those rights [associated with the family] not because they contribute in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. ‘[T]he concept of privacy embodies the
Stenberg
was by no means the end of the Court’s campaign.
Hill
v.
Colorado
(2000) upheld a Colorado statute making it criminal to approach within 8 feet of a person seeking an abortion or within 100 feet of the entrance to an abortion clinic in order to protest or persuade against abortion. Because the ban was based on the content of the message, the Court’s previous decisions showed it to be invalid. The statute would not have been countenanced for a moment had the speech been made against a war or in support of a strike. As a dissent noted, “There is apparently no end to the distortion of our First Amendment law that the Court is willing to endure to sustain this restriction upon the free speech of abortion opponents.” Yet Justice Stevens stated with satisfaction in
Stenberg
that “the central holding of
Roe
v.
Wade
… has been endorsed by all but 4 of the 17 Justices who haveaddressed the issue.” Since there is no constitutional support for
Roe
, that fact is less a testimony to the merits of the decision than proof that a large majority of the Justices are willing to jettison the Constitution when their own sympathies or ideologies are in play. Abortion has become a sacred cause for the Court, before which neither the Constitution nor the Court’s previous decisions can stand. The abortion right has survived many changes in the Court’s personnel and, though it will never gain general public assent, abortion virtually on demand and for any reason seems secure for the foreseeable future. It is a central part of the New Class’s creed.
Substantive Equal Protection and Homosexuality
Substantive due process is only one technique of activism in the Court’s repertoire. More recently, the Fourteenth Amendment’s guarantee of equal protection of the law, designed to protect the newly freed slaves after the Civil War, has become another uncontrollable source of judicial power. Since all law makes distinctions, it is possible to say that all law denies equal protection to persons on the unfortunate side of the line that has been drawn. To invalidate all such laws would make anarchy a constitutional requirement. The Court, therefore, has chosen which interests are subject to equal protection analysis and which not. Once again, the Court, rather than the legislature, makes the law.
In the name of equal protection, the Court may be on the verge of another extra-constitutional venture – thenormalization of homosexuality. Nothing in the Constitution speaks to the question. Historically, homosexual conduct has been left to the moral decisions of the people and their elected representatives. In
Bowers
v.
Hardwick
(1986) the Court narrowly held, in keeping with the longstanding constitutional understanding, that a state may make homosexual sodomy a criminal offense. The vote was only five to four, however, and one member of the majority later publicly regretted his vote.
The dissent by Justice Blackmun, which had come within a hair of being the majority opinion, stated with startling boldness and clarity that the informing principle of the Constitution is radical individual autonomy. Chastising the majority for arguing that prior privacy right cases related to the protection of the family, Justice Blackmun stated: “We protect those rights [associated with the family] not because they contribute in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. ‘[T]he concept of privacy embodies the
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