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Court Fiction

By James L. Hirsen, J.D., Ph.D.
contributor to

Making law just isn't as exciting as it used to be. Today judges aren't satisfied with merely doing the legislature's job. Now they're making up new facts.

Take the Connecticut Supreme Court ... please. It recently decided that a person in the womb is a "body part."

This particular part of mom's body has a different blood type, different brain waves and different DNA. But all those pesky details just seem to get in the way of a woman's right to choose to surgically remove what the court has deemed to be a potentially inconvenient appendage.

The ruling did uphold a conviction of a guy who thought the best way to handle his girlfriend's pregnancy was to slip her some ulcer pills in order to induce labor. The court protected the 5-week-old human but felt the need to lie about "its" status.

Straddling the placenta, Chief Justice William J. Sullivan issued a concurring opinion admitting that "the fetus may both be a part of its mother as well as its own individual being."

Defense attorney Paula Waite gave us a hint as to why the court would engage in such painful contortions of logic. She said that if the fetus is its own life form, the state's abortion laws are in question. So the real reason that the court is doing all this stuff is to preserve the hallowed rite of abortion ­ scientific fact, experience and common sense be damned.

Then there are the Connecticut Court's cousins on the other side of the country. You know, the robed ones who inhabit the most reversed court in the land ­ those nitwits on the 9th Circuit Court of Appeals. This group of judicial body parts has now formally refused to revisit a ruling that ignored historical facts as well as the plain meaning of the English language.

This is the same gang that wants to ban the Pledge of Allegiance in our schools. So why should anyone be surprised at their claim that the Second Amendment doesn't refer to individuals?

The dissenting judges did give us some hope for the judicial future of the court, though. Justice Alex Kozinski took apart the majority's idea that some amendments are more equal than others. He wrote:

"It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us."

Regarding history, Kozinski spoke of the historical foundations of the right to defend liberty:

"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late."

While Judge Kozinski brought up history, Judge Kleinfeld pointed out the twisting of language. Kleinfeld wrote:

"The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, 'the people,' as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to 'the people,' including those having nothing to do with guns."

Yeah, like the First, Fourth, Ninth, Tenth ...

One court tries to make a person into a body part, while another tries to turn an individual into a collective. Maybe it's time for these benchwarmers to transfer to a court more in line with their thinking. Squash sounds about right.

Reproduced with the permission of . All rights reserved

Copyright © 2003
James L. Hirsen, J.D., Ph.D.

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