By James A. Wilson
The difference between procedure and protocol is the difference between doing things the right way and doing the right thing in the right way. The Fourteenth Amendment was enacted to ensure protocol enjoyed at least equal prominence alongside procedure; it was all about doing the right thing while proceeding to the right way. One such famous dichotomy was resolved when the Supreme Court overturned the supremely wrongheaded Plessy vs Ferguson in Brown vs Topeka Board. The 1954 court found what the 1896 court missed; the Fourteenth Amendment – in requiring accommodation for all – declares in context that separate but equal facilities and associations equal in-equality, whether in trains or in schools. Plessy/Ferguson had done it the right way – in terms of existing law – but the Court in Brown/Topeka found it was utterly the wrong thing to do in terms of the Constitution.
SCOTUS had a failed opportunity to do the right thing – under existing standards – just recently. The court heard an Indiana law that placed two restrictions on abortions in that state. One forbade abortions for sex selection or based on race or nationality. The other mandated burial or cremation for fetal remains following abortion; this would preclude selling baby body parts. Because it imposes no burden on aborting babies themselves the court accepted the mandate for burial. Yet using a twenty-seven year-old policy that abortion can be restricted only if it imposes no “undue” burden on a woman’s right to choose, SCOTUS let stand a lower court decision cancelling the law for sex selection and so forth. Most interesting was the rationale for not acting; SCOTUS retained “our ordinary practice of denying petitions insofar as they raise legal questions that have not been considered by additional courts of appeals.”
Of course, while justices await additional cases making their way through lower courts babies continue to die and their parents suffer guilt and shame without even necessarily knowing why. Vice President Pence, who signed the Indiana law as governor, expressed hope the process will be speedy. Justice Clarence Thomas wrote scathingly of concern that abortion not be a “tool of modern eugenics.” He knows Planned Parenthood was birthed as just such a tool by pro-eugenics founder Margaret Sanger. And the innocent continue to die.
Activist judges regularly trample on people’s constitutional rights in cases like the 2005 Kelo case – in which SCOTUS upheld New London, Connecticut’s claim that forcing homeowners off their land in favor of private developers who would enhance tax revenues – was legitimate of eminent domain despite the plain language of the Constitution. They did it because they deemed it the right thing to do; never mind the constitutionally lawful thing to do.
Perhaps the most infamous example of procedure trumping propriety is the Dred Scott decision – SCOTUS held that a man enslaved in one state remains a slave in another even if slavery is illegal there – because the Court believed it the right thing to do. Surely a Supreme Court so willing to go outside law and Constitution when it is “the right thing to do” can bring itself to do the right thing when it is within law and Constitution.
Doing the right thing requires no judicial activism. Roe v Wade based legalized abortion on a created-on-the-spot right to privacy; that is activism. Obergefell v Hodges mandated same sex marriage across the land when justices declared the issue “too important” to be left to legislators as the Constitution requires. This Indiana statute could be upheld within parameters of the Fourteenth Amendment and existing federal law.
The Fourteenth Amendment provides equal protection for all persons. Civil rights law requires equal protection for all persons in places of public accommodation. The rub is the Supreme Court does not recognize unborn children as persons. They miss this recognition because medical science had not progressed to its present understanding of when life begins in 1973; Roe v Wade holds only the mother has personhood under law. Yet medicine has reached a point of scientific certainty – through DNA studies, early heartbeat detection, and obvious brain activity, that every unborn child is a human being from conception forward. If all persons merit protection of life outside due process – meaning both procedural (right way) and substantive (right thing) – then SCOTUS had every reason to uphold this Indiana law and virtually all other pro-life legislation
All that is missing right now are five justices with the courage to sacrifice their sacred cow of procedure trumping protocol, of doing the right thing in – but before – the right way.
God has enough courage. He supplies it upon request and without exception.
James A. Wilson is the author of Living As Ambassadors of Relationships, The Holy Spirit and the End Times, Kingdom in Pursuit, and his first novel, Generation – available at Bounty Books, or at firstname.lastname@example.org