By DONALD DeMARCO
On January 22, 2022, untold thousands who support life are marching for the forty-ninth anniversary of Roe v. Wade in the Nation’s Capital. This year they have greater hope than ever before that the infamous 1973 U.S. Supreme Court decision will be overturned. The issue that will soon be before the United States Supreme Court will be a purely legal one, although the abortion issue is primarily moral. The question is whether there is any provision in the Constitution that permits a mother to kill her unborn child. The words of Justice Byron White continue to resonate. In his dissent, he identified the Roe v. Wade decision as an act of “raw judicial power.”
History has made it clear that, starting with the Dred Scott decision, the Supreme Court has made a number of egregiously bad decisions that were eventually overturned. The argument that Roe v. Wade should stand because it has been in effect for nearly half a century contradicts the court’s history.
An example of a bad Supreme Court decision that was ultimately overturned is Plessy v. Ferguson that stood for 58 years before it was overturned by Brown v. Board of Education in 1954. A synopsis of the factors leading up to the Plessy v. Ferguson ruling will show why it was not congruent with the Constitution and why it remains relevant to the current abortion situation.
In 1890, the state of Louisiana adopted a law providing for “equal but separate accommodations for the white and colored races” on its railroads. Homer Plessy, a person of color, tested the legitimacy of the law by sitting in the “white” section of a train and refusing to leave when told to do so. He was fined $25 and his case was heard by Judge John H. Ferguson of the Criminal Court of New Orleans who saw fit to uphold the law. The law was ultimately challenged in the U. S. Supreme Court in 1896 on the grounds that it violated the 13th and 14th Amendments of the Constitution. By a 7-1 decision, however, the Supreme Court upheld the Louisiana law, maintaining the notion that blacks were “separate but equal.”
The Plessy decision was highly influential in establishing racial segregation laws in the South and provided the impetus for further segregation in the North. The “separate but equal” doctrine prevailed, even though “equal” did not really mean equal. A black person did not have an equal right to sit in whatever section of a train he chose. “Separate” was not compatible with “equal.” Furthermore, states consistently underfunded black schools and provided them with substandard buildings, textbooks, and supplies. Inequality prevailed in restaurants, washrooms, hotels, and in other public facilities. Segregation and equality were on a collision course with each other.
The lone dissenter in the Plessy v. Ferguson decision was Judge John Marshall Harlan who made a thoroughly reasonable argument that blacks should be accorded full civil rights. “The white race deems itself to be dominant,” he wrote, but the constitution recognizes “no dominant ruling class of citizens. . . . Our constitution is color blind. . . . In respect of civil rights all citizens are equal before the law.” He then compressed into nine words, the essence of his thinking: “The humblest is the peer of the most powerful.”
In making this statement, Justice Harlan cut through the secondary features that distinguish one human being from another, such as power, status, level of education, and race. He focused on the common denominator of “human being” which the Constitution specifically protects. His statement is also fully in accord with Christianity, for Christ stated that “whatever you do for the least of my brethren, you do for me” (Matt. 25:40).
We can readily identify those who are in power. But who are the “humblest” or the “least”? Who are the ones who have no power, money, education, or social status? The answer should be evident. The humblest of all human beings are those who are unborn. Just as Homer Plessy had the right to sit in any section of the train, so, too, the unborn have the right to occupy their mother’s womb as they wait to be born.
The March for Life honors the equality of all human beings. At the same time, it opposes the notion that being “separate” or being treated separately is consistent with that equality. It is ironic that people who deem themselves “liberal” want to conserve Roe v. Wade which denies the right to life of unborn human beings. The overturning of Plessy v. Ferguson was liberal in the truest sense of the word because it extended equality to all Americans. In preserving Roe v. Wade, “liberals” want to liberate the Constitution from itself. Such “liberalism,” needless to say, is incompatible with the very justice which the constitution was established to ensure. The “liberal” turns conservative the moment he is confronted with his own contradictions.
That the “humblest” is the peer of the most powerful is not only congruent with the U.S. Constitution, but also with a truly liberal vision, in addition to, as we have noted above, with the essence of Christianity.
Justice Harlan was known as the Great Dissenter. But he was also a prophet. Concerning the Plessy v. Ferguson decision, he predicted that “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal, in the Dred Scott case.” In 1954, the United States Supreme Court ruled, in Brown v. Board of Education, that segregation in public education was unconstitutional. Ten years later, the Civil Rights Act prohibited all legal segregation.
The Marchers for Life can take encouragement from the overturning of the Plessy v. Ferguson decision. They are not on the wrong side of history. They are in step with true progress, which is extending liberty and justice to all. They are also marching along a path of courageous dissent outlined by Homer Plessy, John Marshall Harlan, and Byron White.
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