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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  September 16, 2008
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Stuart Taylor's Moderation Doesn't Suit Abortion

When it comes to continuing to pretend that there is supposed to be a constitutional right abortion, however, Mr. Taylor recently took a “moderate” approach and received some strong reproach.

MODERATION IN ALL THINGS - "Thinkers of ancient Greece held the notion of moderation in high esteem. As early as the ninth century B.C., the historian Hesiod wrote in 'Works and Days,' 'Observe due measure, moderation is best in all things.' The Greek playwright Euripides echoed that sentiment in 'Medea' (c. 431 B.C.) with, 'Moderation, the noblest gift of heaven,' and after him the philosopher Plato advised in 'Gorgias' (c. 375 B.C.), 'We should pursue and practice moderation.' Centuries later, Chaucer first rendered a similar English saying in 'Troilus and Criseyde' (c. 1385) with 'In every thyng, I woot, there lith mesure (moderation or proportion)'.William H.G. Kingston gave the exact wording of the modern version in his translation of 'Swiss Family Robinson' (1877)." From "Wise Words and Wives' Tales: The Origins, Meanings and Time-Honored Wisdom of Proverbs and Folk Sayings Olde and New" by Stuart Flexner and Doris Flexner (Avon Books, New York, 1993). Page 127.

Alas, even moderation needs to be practiced moderately: sometimes it’s a matter of right and wrong and then right should trump moderation.

America’s best legal commentator, Stuart Taylor, Jr., co-author of Until Proven Innocent: Political Correctness and The Shameful Injustices of the Duke Lacrosse Rape Case, boldly championed old-fashioned justice and simple right and wrong in the Duke case instead of moderation.

When it comes to continuing to pretend that there is supposed to be a constitutional right abortion, however, Mr. Taylor recently took a “moderate” approach and received some strong reproach.

Professor Matthew J. Franck took vigorous exception to Mr. Taylor’s latest article, “Why Abortion Should Swing Few Votes: Would a McCain-Palin Victory Spell Doom for Roe v. Wade? I’d Bet Against It.”

Professor Franck:

“In National Journal, the careful moderate Stuart Taylor is, I'm sorry to say, only careful and moderate by contrast to the careless and passionate Cass Sunstein. Describing himself as ‘lean[ing] to the abortion-rights side,’ Taylor works overtime to portray both Obama and McCain as ‘immoderately absolutist,’ relying on polls to make his own case for the liberal ratchet effect.”

Mr. Taylor’s latest article is not the first article in which Mr. Taylor took the center and verbally whacked both left and right.

But this time the right is upholding constitutionality and should be applauded, not assailed, and Mr. Taylor’s ground is infirm, since Obama's abortion position is so extreme that it includes infanticide and McCain's is "moderate," protecting innocent human life except in cases of rape and incest.

Professor Franck:

“[I]t’s clear that such analysis is not Taylor's strong suit. He writes, for instance that the public is ambivalent. Polls show that most respondents, by ratios that are sometimes close to or above 2-to-1, do not want to see Roe v. Wade overturned. But paradoxically, majorities do support some restrictions (such as spousal-notification requirements) that are barred by current law, which is already more restrictive than the original Roe; decisions over the past two decades have somewhat narrowed Roe's protections while preserving its ‘essential holding.’

“As Ramesh Ponnuru has tirelessly explained many times, what Taylor thinks is ‘paradoxical’ is easily explained by the fact that most respondents to surveys have only the dimmest, and mostly inaccurate, understanding of what Roe wrought in our law. So they say they want it preserved (thinking it sanctions only first-trimester abortions without restriction, for instance) while simultaneously saying they'd like more restrictions that they think it permits—although it doesn't.

“And come to think of it, I'm beginning to wonder if legal analysis is Taylor's strong suit, either. I always have thought so. But what can he possibly mean by saying that ‘current law’ is ‘more restrictive than the original Roe’ as a result of some ‘decisions over the past two decades’? Other than the federal ban on partial-birth abortion, which prohibits only a certain particularly barbarous method of performing an abortion, there has been no change in the legal regime installed on January 22, 1973. It has been consistently true ever since that day that a pregnant woman may obtain an abortion at any time before her child's birth, for any reason, from any physician willing to perform the procedure, and the law is helpless to do anything about it.

“And this is what Taylor thinks (echoing Sunstein) it would be ‘radical and destabilizing’ to overrule. Yes, this is indeed the voice of moderation.”

The problem here is with moderation.

The lesson King Solomon taught in deciding which of two claimants was a baby's mother was NOT that the baby should be cut in two, but that the truth must be uncovered for justice to be done.

As Professor Franck noted with pleasure, “[t]he academic defenders of Roe v. Wade have long since abandoned actually defending it” and Harvard Law school's Professor Cass Sunstein conceded that in Roe "[t]he court failed to root the abortion right in either the text of the Constitution or its own precedents."

The Constitution neither created a right to abortion nor prohibited abortion.

Each state was entitled to decide.

The Fourteenth Amendment was never intended to deprive the states of their power to decide that.

The United States Supreme Court created a constitutional right to abortion by judicial fiat.

Like me, Professor Franck flatly rejects the argument that an unconstitutional decision that deprives of the states of their constitutional right to permit or to prohibit abortion must be allowed to stand forever, because it has stood for awhile.

Professor Franck:

“So why should voters back the candidate who promises to preserve Roe with his judicial appointments? Because, says Sunstein, the ruling ‘has been established law for 35 years’; because overturning it would ‘disrupt and polarize the nation’; because ‘American constitutional law is stable only because of the principle of stare decisis . . ."

Nonsense! The oath of office prescribed in the Constitution requires fealty to the Constitution itself, not the judicial doctrine known as stare decisis (which did not stop the United States Supreme Court from overruling “separate but equal” or reconsidering and overruling its decision that states are entitled to prohibit private homosexual activity.

Professor Franck persuasively pointed out the constitutional law stability should be restored:“Um, hang on there a minute, Professor. You've just admitted that Roe itself flew in the face of precedent—indeed, of the entire history of common and constitutional law, I would add—and it follows therefore that Roe was a destabilizing force in American law. And it is universally recognized that politically, Roe ‘disrupt[ed] and polarize[d] the nation.’ Why does your own logic not drive us to conclude that overturning Roe would constitute a restoration of constitutional law's stability?

“Is it just that a period of 35 years achieves a new status quo that must be respected for stability's sake? How much time is needed? Weren't you making this argument ten years ago, and even twenty, perhaps thirty years ago? And if 35 years are enough, what about 58? That's the stretch of time that passed between Plessy v. Ferguson and Brown v. Board of Education. Did Brown not destabilize and ‘disrupt and polarize’ our law and politics? Isn't the important question whether it was right?”

EXACTLY!

Solomon returned the baby to the rightful mother, because it was the right thing to do.

Regulation of abortion should be returned to the states, because it is rightfully a state matter under the Constitution.

Mr. Taylor may be right that a McCain/Palin victory may not lead to the overturning of Roe.

That would depend in great part upon who are the United States Senators when successor United States Supreme Court Justices are nominated and whether nominees get the up-or-down vote contemplated by the Constitution. (Treaties require a supermajority, but nominees are confirmable by a simple majority.)

Mr. Taylor: “Both political parties embrace unpopular, immoderately absolutist positions on the issue, although McCain has flirted with moderation in the past.”

What is right is not necessarily popular and what is absolutist may be absolutely right (or absolutely wrong).

The Constitution should be upheld, not disrespected by amendment under the guise of judicial interpretation.

Mr. Taylor:

“Obama would make it easier for women to get abortions; most voters would make it harder. Obama would require the federal government to fund abortions for poor women; most voters oppose that. And Obama's record as an Illinois state senator can be read as suggesting that he may have a more sweeping vision of abortion rights than any of his current Senate colleagues have.”

TRUE, TRUE AND TRUE!

Mr. Taylor: McCain “is well aware that a decision overruling Roe would be hugely unpopular, hurting Republican candidates at all levels for years.”

Even if that is true, it is utterly irrelevant to whether Roe was rightly decided and should be overruled.

Mr. Taylor: “Choosing the candidate most likely to prevent…a catastrophe is far, far more important than choosing the one whose position on abortion seems preferable.”

How many million abortions would constitute a catastrophe?

Mr. Taylor:

”Even if the Court were to overrule Roe, that would not make abortion illegal. It would merely give states the option of banning or severely restricting abortion. Most would not do so. And women in anti-abortion states would remain free to get abortions elsewhere.”

True, true, probably true in the near term and true…and all also irrelevant as to whether Roe was rightly decided and should be overturned.

Mr. Taylor: “This is not to deny that new restrictions could have a heartrending impact on women and girls who are desperate to have abortions but unable to cope with legal hurdles. The same is true of any restriction, however, including the current laws against infanticide-like abortions of viable, 8-month-old fetuses. Unless we are to treat all unborn fetuses as insignificant clumps of tissue, the law must draw lines.”

Abortion stopping a beating heart is even more“heartrending.”

And the law need not draw “lines”: the law could recognize that life begins at conception.

Mr. Taylor:

“Obama's record suggests that he would draw those lines far to the left of center of mainstream public opinion. He said in July 2007 that ‘the first thing I'd do as president is sign the Freedom of Choice Act.’ That 19-year-old proposal, which has never passed Congress, would nullify the popular law against federal funding of abortions; end the even more popular federal ban on ‘partial-birth’ abortion; and sweep away the broadly popular state laws requiring parental notification or consent (or judicial approval) before a minor can obtain an abortion and 24-hour waiting periods before any woman can obtain one.

“Beyond that, as an Illinois legislator, Obama opposed (unsuccessfully) a 2003 Illinois bill nearly identical to the federal Born-Alive Infant Protection Act of 2002, which passed the U.S. Senate by 98-0. Both laws require that aborted fetuses that are alive -- even if they are too premature to be ‘viable’ (capable of surviving more than a few hours) -- be given appropriate medical care and treated as full persons under the law. This has opened Obama to criticism by the National Right to Life Committee that his position was so extreme that he considered ‘a breathing, squirming, fully born pre-viable human baby [as] still covered by Roe v. Wade.

“Obama has accused the NRLC of ‘lying’ about his position. And he and his campaign have provided various rebuttals, including a claim that he would have supported the federal bill, and opposed the Illinois bill only because it lacked a provision specifying that abortion rights would not be affected. But the NRLC has produced documents showing that the state bill that Obama opposed in 2003 did contain such a provision, and that he knew it.”

Bottom line: Obama is a liar who probably would save a baby seal from being clubbed to death, but is so tied to the abortion industry that he would protect a mother’s “right” to make sure her baby does not survive a botched abortion for long.

Mr. Taylor: “Obama has sought to sound more moderate on abortion this year, especially since he locked up the nomination. He drew criticism from abortion-rights activists and arguably departed from current law by saying in July that ‘mental distress’ -- which he later amended to merely ‘feeling blue’ -- should not be a legal justification for aborting a viable fetus.”

Obama won the Democrat nomination and positioned himself for the general election, but his “moderate” pose cannot pass inspection.

Mr. Taylor: “I lean to the abortion-rights side of the policy debate, with increasing misgivings as the developing fetus looks less like a clump of cells and more like a baby. As a matter of constitutional interpretation, however, I agree with the many scholars who saw it in 1973 as a profoundly unwise, undemocratic, and disruptive usurpation of legislative power for the Court to strike down the abortion laws of all 50 dates and create overnight an abortion right far broader than any other nation recognizes.”

Right on the law, wrong on the lean.

Mr. Taylor: “But Roe has been on the books for 35 years. The Court has repeatedly reaffirmed its ‘essential holding.’ Scores of millions of women see legal abortion as their birthright. The public is not clamoring for change. Given all of this, it would be a radical and destabilizing move to overrule Roe now. I hope that Roberts, Alito, and any McCain nominees understand that.”

First, repeatedly repeating a mistake does not make the mistake something other than a mistake.

Second, the United States Supreme Court is supposed to uphold the Constitution, not amend it, and politics and personal preference should not motivate judicial decisions.

Mr. Taylor: “It would also be a bad idea for Congress to flout public opinion by sweeping away with a party-line vote virtually all of the modest restrictions on abortion rights that the justices have upheld since Roe. I hope that many Democrats, including Obama, understand that, too.”

Congress IS supposed to uphold the Constitution AND consider public opinion as well as what is right and what is wrong.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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