Slide 13
“In constitutional adjudication, some steps, which when taken were thought to approach 'the verge,' have become the platform for yet further steps. A certain momentum develops in constitutional theory, and it can be a 'downhill thrust' easily set in motion but difficult to retard or stop.”
Justice Warren E. Burger
CLAIM: Supreme Court Justices warned against using the Article V Solution. FICTION.
Critics and doomsayers quickly point out the letter Justice Warren Burger is said to have written to Phyllis Schlafly, Founder of the Eagle Forum, and a quote by Justice Antonin Scalia to prove their ominous warnings.
They argue that if two prominent conservative jurists were against this process, we would be foolish not to heed their warning. They promote the fear that a constitutional convention (the boogeyman they refer to as "CON-CON") will destroy our country.
We see with our own eyes that Progressives have been erasing and rewriting history for decades. No topic has been more corrupted by this effort than abortion. The opposition knows this issue is polarizing and aims to keep us divided and distracted.
In the two upcoming blogs, we will address Justice Scalia’s quote and documented beliefs. For now, we will focus on Justice Warren Burger’s “letter.”
Why would the opposition use Justice Burger’s letter to stoke the flames of fear?
Time and context must be understood:
- At the time it was written, there was a grassroots movement of pro-life activists pushing to make abortion illegal in this country by calling an Article V convention.
- An Article V Convention on this topic would threaten Justice Burger’s legacy of Roe v Wade, so denouncing the process as unsafe would protect that legacy.
- Some have called into question the authenticity of the letter itself.
Roe vs. Wade has been a topic of contention in this country since it was first argued in December of 1971. It split the country in two, and that rift still exists today. In the 50+ years since each camp has only dug in and built extensive fortifications to protect its position.
Let’s set aside the debates and arguments for or against either side and reconstruct the actual chain of events from the historical record. We will remain fact-based and reserve judgment for another day.
1. Contrary to the false narrative propagated today, abortion was indeed legal in parts of this country before Roe vs Wade.
The breakdown: prior to Roe v. Wade, thirty states prohibited abortion without exception, sixteen states banned abortion except in certain special circumstances (e.g., rape, incest, and health threat to mother), three states allowed residents to obtain abortions, and New York allowed abortions generally.
2. Early that year, on January 22, 1973, the U.S. Supreme Court in Roe v. Wade invalidated all of these laws and set federal guidelines for the availability of abortion. In the landmark Roe vs Wade decision, the court held:
“A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception.
In a brief that concurred with the majority, Justice Burger:
“...agreed with the Majority opinion’s holding that the Texas statutes and the similar ones in Georgia violated the Due Process Clause of the Fourteenth Amendment. Burger, however, expressed minor concerns that the “Court has taken notice of various scientific and medical data reaching its conclusion.”
He also differed with the Majority regarding the state’s regulations on personnel performing abortions, asserting that regulations found in Texas and Georgia statutes were not “unduly burdensome.”
3. This decision polarized the country immediately. In the fall of 1973, a movement began to form - The March for Life. This organization started to gather like-minded citizens and made abortion a national issue; on January 22, 1974, the first anniversary of Roe, the March for Life gathered 20,000 protesters to march on Washington, DC.
4. This grassroots organization took root nationwide; citizens started asking their state legislatures to apply to call an Article V convention of states to propose an amendment guaranteeing the right to life. By the early 1980s, 19 states had made applications to call the convention.
Justice Burger’s letter encouraged the opposition to fight to save Roe. It had an effect; the country cooled on the issue, and the Roe precedent lasted 50 years. What were Justice Burger’s motives?
COSA PA presented the facts; you may now make informed judgments and reach your own conclusions.
Finally, it is worth noting that some still question the letter's authenticity.
One group, Friends of the Article V Convention (FOAVC), (founded in 2007 by Former Chief Justice of the Michigan State Supreme Court Thomas E. Brennan) was “the first national non-partisan organization dedicated to bringing about an Article V convention call by Congress. The reason for FOAVC's founding was that public records proved that the states had applied in sufficient numbers to cause a convention call. Congress was unconstitutionally ignoring the applications. The FOAVC Founders realized there was no source that provided easy access to this public record or accurate information about an Article V Convention.”
FOAVC has researched the history of the Burger “letter” and has found notable discrepancies in the timeline and other supposed factual opposition claims that have yet to be proven. See - The Phony Burger Letter.
Again, COSA PA has researched and shared the facts; you must reach your own informed opinion.
While a hot-button topic for decades, the fact also remains that the federal government's involvement for or against abortion is not among the powers enumerated in the Constitution. That responsibility, including allowance for or limitations on abortion, rests solely with the states, which is where it has now been returned.
Changing that would require a constitutional amendment proposed by either two-thirds of both Houses of Congress or on the Application of the Legislatures of two-thirds of the several States to “call a Convention for proposing Amendments,”
And ratification via either the Legislatures of three-fourths of the several States or by Conventions in three-fourths thereof.
