November 21, 2016

An Open Letter to President-elect Trump

by Hal Gershowitz

Comments Below


Of Thee I Sing Heading AuthorsDear President-elect Trump,

In the interest of full disclosure, I am a centrist American (sometimes center right and sometimes center left) who did not vote for you, or for that matter, for your Democratic opponent. I am, however, writing to you because I appreciate your stated determination to be the President of all Americans whether they voted for you or not.

You have expressed a decision to appoint Supreme Court justices who are committed to overturning Roe versus Wade. I appreciate that ending a woman’s right to terminate a pregnancy, even under the limitations established by Roe, is a bedrock position of some of your strongest supporters. I think you also appreciate that respecting a woman’s right and a family’s right to privacy with respect to highly personal and intimate judgments is also a bedrock position of most Americans. For many years, that was your position as well.

I urge you to try to put aside labels and slogans and the support of this group or that group and focus, presidentially, on what is really at stake here—the personal and private judgment of a woman, or a family, regarding one of the most personal of all decisions. Many, who call themselves conservative, view this as a defining battle between political conservatism and political liberalism. It is not. The father of the modern conservative movement, Barry Goldwater, bristled at the thought that political conservatism might devolve into religious conservatism. Goldwater believed, and frequently expressed, that politicians sticking their collective noses into such personal, individual reproductive decisions was the very antithesis of political conservatism. As the late senator told the LA Times over twenty years ago, “…A lot of so-called conservatives don’t know what the word (conservative) means. They think I’ve turned liberal because I believe a woman has a right to an abortion. That’s a decision that’s up to the pregnant woman, not up to the pope or some do-gooders or the Religious Right.” He was, of course, correct and we think you know that.

Not surprisingly, he also became a strong believer in gay rights, especially the right of gay men and women to serve openly in the military. He stated, correctly, that gay men had served and died for our country in every war since the Revolutionary War. You have also opined on this issue, stating that gay rights (the right of gays to marry) was now settled law. That was a correct judgment on your part. It was presidential.

A woman’s right, within certain limitations, to choose whether or not to bring a child into the world is also settled law. At least conservative Justice Sandra Day O’Conner thought it was, as did conservative Chief Justice John Roberts when he testified at his conformation hearing. Specifically, he was asked by Senator Arlen Specter, “Judge Roberts, in your confirmation hearing for the circuit court you testified: ‘Roe is the settled law of the land.’ Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?”

ROBERTS: “Well, beyond that (emphasis added). It’s settled as a precedent of the court, entitled to respect under principles of stare decisis (the principle that legal precedent should, with rare exception, be respected). And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.“

SPECTER: “You went on to say then, ‘It’s a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision, so it has added precedential value.’”

ROBERTS: “I think the initial question for the judge confronting an issue in this area, you don’t go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding.”

Now, we fully appreciate that the right of a woman to terminate a pregnancy within the limits established in Roe is not a universally accepted view. It has become one of the most politically charged issues in the land—a litmus test for many seeking public office, especially judgeships. We understand that highly respected jurists have widely differing views on the subject, and that you as President will have substantial latitude to appoint judges who will alter what many consider to be settled law. That is your right—your decision to make.

But we implore you to think this through carefully—presidentially. Women may face the decision to terminate a pregnancy for a variety of reasons, but it is invariably an incredibly stressful decision often driven by very complex realities. No one should sit in judgment of those realities other than the individual—the woman who is confronting them.

Sloganeering and wordsmithing crafted by political strategists have sullied rational discussion. The word fetus has been excised from politispeak. A just-fertilized ovum becomes an unborn child. That ovum may have been fertilized during a rape, but, nonetheless, that ovum would be viewed by many as an unborn child that the victim of the rape must carry and to which she must give birth. That is not a moral decision—it is a political decision. According to the National Center for Biotechnology Information at the U.S. National Institutes of Health over 32,000 pregnancies result from rape each year in America. Let’s continue to leave the decision about what to do in such cases to the woman who was raped.

Of the 4.4 million confirmed pregnancies in the United States each year, close to 1,000,000 end in miscarriage, or spontaneous abortion, during the first twenty weeks of pregnancy. Add to this the number of spontaneous abortions that occur in unconfirmed pregnancies before the mother is even aware she is pregnant, and the number of miscarriages or spontaneous abortions is estimated to be much, much, higher. These early spontaneous abortions are generally caused by chromosomal abnormalities, and they represent nature’s way of terminating a serious, and invariably deadly anomaly in the developing pregnancy. Sadly, nature’s surveillance of these anomalous pregnancies is imperfect. Advances in medical science have, however, made it possible to detect fetal anomalies that escape nature’s purview. Expectant parents can be informed, if they wish to be, very early in a pregnancy of equally anomalous fetal development that will, with absolute certainty, produce seriously abnormal, and often fatal outcomes—sometimes involving months and even years of horrible, unremitting, infant or childhood suffering.

And yes, sometimes decisions driven by extreme poverty or emotional stress, or the pregnancies of expectant mothers who themselves are children also all become part of the right-to-life versus the-right- to-choose political debate. The sad thing is that this complex and highly personal issue should not be a political debate at all. It belongs in the realm of protected privacy.

To blithely pronounce that overturning Roe, in today’s hotly-charged environment, would merely turn this issue over to the States fails to recognize the undue burden on the women (and their families) such a decision would create. Sadly, many politicians in many states have no hesitancy at all in constructing undue burdens—near impossible hurdles for women (and families) dealing with this most private and stressful decision.

For example, the State of Texas passed a law three years ago that required that all clinics providing abortion services be retrofitted to meet the standards of ambulatory surgical centers, which caused about half the clinics in the state to close before the courts stepped in. When it finally reached the US Supreme Court, Justice Stephen Breyer aptly laid bare the sophistry inherent in the Texas law noting, “nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. The mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion.” In other words, protecting the health of the woman had nothing to do with the Texas law. Creating a stumbling block, an undue burden, had everything to do with the Lone State’s legislation.

Vacating Roe will plunge this issue back into a maelstrom of political posturing that will rage for years. The varied circumstances that inform a woman’s judgment with respect to continuing a pregnancy are complex and often heartbreaking. Every case that makes its way to the Supreme Court deserves to be heard, but not by jurists who, by their own admission, have made up their minds before hearing the case.

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6 responses to “An Open Letter to President-elect Trump”

  1. Nancy Anderson says:

    Roe vs. Wade is a precedent AND it HAS been reaffirmed. You correctly stated that this has no business being a political issue. It is absolutely a private decision. Governmental individuals always drag emotional issues before voters to get elected. It’s as if they’re saying ” let’s focus on this instead of what I’ve been doing”.
    Nancy Anderson

  2. Terri Ketover says:

    Well-stated and compelling. Hope President-elect Trump reads and heeds your on-line journal!


    Right on re Roe/Wade. Men and women have died to give one the right to vote: To cast or not cast a meaningful ballot is a waste of their sacrifice.

    We agree! We also voted.

  4. Chuck Anderson says:

    Very well stated Hal. Let’s hope ‘TheDonald’ (can’t yet get myself to say President & Trump together) comes to the same thoughtful conclusion.
    Looking forward to your take on Trump’s inner circle picks.


    I guess I should have capitalized MEANINGFUL.

    One shouldn’t divine who is MEANINGFUL and who is not. When a voter feels neither major candidate will be good for the country, voting for a third party candidate is a perfectly legitimate way of voicing that dissatisfaction. People sacrificed, so that people could vote — not so they could vote for the Democrat or the Republican candidate.


    Third party votes were a waste: Who even rememberso which they were?

    Well, most Democrats probably remember a third party candidate named Ralph Nader, and George Bush certainly remembers Ross Perot. But, Dr.Goldberger is correct. One doesn’t vote for a third party candidate with the expectation that he or she will win–only that a strong third-party showing will send a message. For example, we can make a strong case that Johnson and Stein cost Hillary Clinton the election by the very large votes they tallied in Florida, Pennsylvania, Michigan and Wisconsin, which collectively represented 75 electoral votes. Clinton lost by 74 electoral votes.

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