The Day Penumbra Became Substance in New Hampshire By Dean Dexter
Three statutes outlawing abortion
dating to the 1840s have been expunged from New Hampshire law. Governor Jeanne
Shaheen, a long-time abortion apologist, sealed it all with her signature in
executive chambers on June 3, 1997.
The laws in question were albeit inactive due to the 1973 Roe v. Wade Supreme
Court decision, and subsequent court rulings, all of which have created a
virtual right to abortion on demand in the United States for over two decades.
Contrary to the arguments of some, the dormant New Hampshire statutes did not call for
sanctions against the mother. Rather the laws, encoded in 1848, addressed those
who would perform abortions. Under the statutes, persons who attempted to
procure a miscarriage of a pregnant woman, or who attempted to destroy a "quick
child," (unless to preserve the life of the mother), faced fines of $1,000 and
from one to 10 years in prison. Those who caused the death of a mother due to an
abortion, would face charges of second degree murder.
Attempts previously to delete these laws failed, mostly due to either a veto or
threatened veto from whoever was governor at the time. Then, with a solidly
pro-abortion governor in office, along with a senate and house sympathetic to
abortion, the old laws were history. Today the law is completely silent on the
issue of abortion in New Hampshire. Abortion is totally unregulated in the Live
Free or Die state.*
Although unenforceable, pro-life proponents in New Hampshire had long fought to
keep these statutes in place. Maintaining them on the books was a cause of
sorts, a statement of righteous independence -- if in name only -- from a
federal judiciary that has often arrogantly over-stepped its bounds.
The issue was also just as much a cause for pro-abortionists who have been
mightily irked for years at their former inability to get rid of them.
Admittedly, these statutes had no practical effect on what happened in New
Hampshire abortion mills or to those who perform the grisly procedure. Yet the
action was one of significance because the legislature is the voice of the
people.
While federal court rulings represent the opinions and inclinations of unelected
judges, state laws after all speak to the values and policies of common citizens
as expressed through their elected representatives. In our kind of democratic
republic, the latter is supposed to out-weigh the former, although today the
courts have drawn such power unto themselves the original notion of a "weak
judiciary" appears all but dead.
Today, democracy is becoming, in the words of Justice Oliver Wendell Holmes, a
function of whatever the courts say it is.
Though your social studies teacher might have told you to the contrary, such was
never meant to be in the minds of the Founding Fathers. Stated Thomas Jefferson
in 1820: "The opinion which gives to the judges the right to decide what laws
are constitutional and what not, not only for themselves in their own sphere of
action but for the legislature and executive also in their spheres, would make
the judiciary a despotic branch."
Those who elevate Jefferson's correspondence regarding his imagined "wall of
separation" between church and state to Constitutional levels, conveniently
skirt over his writings on the court's potential to become a modern-day
oligarchy.
Although the Constitution is silent on the subject, Justice Harry Blackmun found
a right to privacy emanating from, among other places, the penumbra -- that is
the partial shadow outside of a complete shadow, as one dictionary defines the
word penumbra -- of the Bill of Rights. This discovery in turn helped Blackmun
construct his now well known "Constitutional right" to terminate pregnancy at
will, despite laws at the time in nearly all the 50 states similar to the ones
disptached in New Hampshire.
Thought: what kind of a grass-roots political job would it take to get a
penumbra of something, anything, ratified by two-thirds of the states on any
subject?
Nevertheless, until the governor's action, the blood of literally millions of
pre-born innocents had been on the hands of Harry Blackmun -- creative legal
contortionist that he was -- and that of the majority of the Court who ruled
with him on that fateful day in Washington in 1973.
Yet, on a similar day, nearly a quarter of a century later, when elected
representatives met in Concord to repeal what had been argued as just some old
laws, a shadow born of an old man's mind spread out over the people of New
Hampshire.
Now, in a way, the blood is on more hands.
Dean Dexter is a former Belknap Country Commissioner and N.H. State
Representative. This article was first published in the June, July, August 1997
issue of N.H. Family Watch.
_______________
*On
May 29, 2003, Governor Craig Benson signed a bill requiring parental
notification before a minor undergoes an abortion in New Hampshire.
Bill Will Enhance Family Rights.
Bill Will Enhance Family Rights.