National Affairs Rory Leishman
Who would have thought that it might take a crass narcissist like United States President-elect Donald Trump to curb the greatest moral catastrophe in the history of the United States: namely, the deliberate, mass slaughter in the womb of more than 50 million babies over the past 40 years.
Trump has got off to a promising start on his presidency by nominating two, impeccably pro-life legislators to his cabinet – Senator Jeff Sessions as Attorney General and Representative Tom Price, as secretary of Health and Human Services. Both have voted to ban federal funding for health-insurance plans that cover abortion and for agencies such as Planned Parenthood that provide abortion services. Together, Sessions and Price can also be relied upon to reverse executive orders by the Obama administration that have undermined the conscience rights of pro-lifers who adamantly refuse to collaborate in the commission of abortion or euthanasia.
While such initiatives are vitally important, they can do little to curb the epidemic of abortion in the United States so long as the United States Supreme Court stands by its lawless and calamitous 1973 ruling in Roe v. Wade, which struck down every state law restricting abortion. Correspondingly, Canada’s elected legislators can do little to eradicate the scandal of legalized abortion on demand so long as the outrageous judgment of the Supreme Court of Canada in Morgentaler, 1988, remains in effect.
Both of these judicial decisions were entirely illegitimate. In Roe, Justice Byron White pointed out in dissent that there is “nothing in the language or history of the Constitution to support” the arbitrary decision of the majority. Similarly, Justice William McIntyre conclusively demonstrated in his Morgentaler dissent that: “Nothing in the Canadian Charter of Rights and Freedoms gives the Court the power or duty to displace Parliament in this matter involving, as it does, general matters of public policy.”
The late justice Antonin Scalia of the United States Supreme Court likewise concluded in his dissent in Planned Parenthood v Casey, 1992, that Roe was wrongly decided and should be reversed. He explained: “I reach that conclusion for the same reason I reach the conclusion that bigamy is not constitutionally protected – because of two simple facts: (1) the Constitution says nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.”
Meanwhile, Trump has promised to appoint judges in the same mould as Scalia. In the case of the United States Supreme Court, that will be no easy task. Currently, any nominee to the top court will need the support of at least eight or nine Democrat senators to reach the majority of 60 per cent of Senators as required by the Senate’s rules for ratification.
Moreover, judicial nominees cannot always be relied upon to stick to promises of judicial restraint made during the appointment process. Thus, in 1992, Justice Marshall Rothstein told the confirmation hearing into his appointment to the Supreme Court of Canada that he believed judges “should apply the law, they shouldn’t depart from the law, they shouldn’t be inventing their own laws.” Yet, in 2015, he joined in the disgraceful Carter ruling that legalized physician-assisted suicide in defiance of both the express will of Parliament and duly enacted, provisions of the Criminal Code.
At present, three judges on the United States Supreme Court support the kind of judicial restraint exemplified by Scalia. Consequently, if, despite the difficulties, Trump and Sessions can somehow come up with just two more like-minded appointees, this Court could reverse Roe and acknowledge once again that authority over policies on abortion belongs to elected representatives of the people in the legislative branch of government.
Like Scalia, McIntyre also recognized that elected legislators should set public policies on controversial matters like abortion. In Morgentaler, he noted: “It is for Parliament to pronounce on and to direct social policy. This is not because Parliament can claim all wisdom and knowledge but simply because Parliament is elected for that purpose in a free democracy.”
Alas, judicial activists on the Supreme Court of Canada have no such respect for the exclusive legislative jurisdiction of Parliament. Time and again, they have replaced existing laws with their own radical legal dictates on everything from abortion and euthanasia to pornography and prostitution.
In no way should Canadians put up with such blatant, judicial usurpation of legislative authority. In a scathing dissent from the 2015 Obergefell ruling that imposed same-sex marriage on all the states, Scalia observed: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
