by Ted Cruz
But one meeting in particular stands out. I was in Jerusalem and had a meeting scheduled for the next day with the prime minister. The American ambassador (appointed by Obama) told me that he insisted on joining us in the meeting. I told him no, he wasn’t invited. He responded by threatening to pull my security.
This was obviously a bluff. It was clear that then-Secretary of State John Kerry had told him that under no circumstances should I be allowed to meet alone with Netanyahu. So I replied, “Fine, pull my security. We’ll hire private security within the hour. You’re still not invited to the meeting.”
The confrontation had an almost comical element to it. The two of us were standing outside the Knesset (the Israeli parliament), literally bumping chests. Inevitably, he backed down.
The next day, I met privately with Netanyahu in his personal office. We smoked Cuban cigars—Montecristos, a personal favorite—and spent over an hour talking about Israel, America, national security, and geopolitics. It was surreal, and I felt remarkably blessed to be friends with such an extraordinary leader.
But, in my most recent meeting with Bibi (as he’s called), we returned to the ICC. He was in Washington in early 2020, and the two of us had breakfast together at Blair House (the White House guest house where he was staying). At the meeting, Netanyahu suggested a strategy: try to get the UN Security Council to pass a resolution that the ICC cannot proceed against citizens of any nation that is not a party to the Rome Statute (which created the ICC).
This would benefit Israel and the United States. To get through, it would take the agreement of all five permanent members of the Security Council. Russia and China, Bibi reasoned, might well agree because they don’t want to be hauled before the ICC. And France and the United Kingdom might agree if the U.S. really pressed them.
And, if the Security Council passed that resolution, it couldn’t be undone without another Security Council resolution—which any of the five could veto. Essentially, it would reverse the default.
One of the things I admire most about Prime Minister Netanyahu is how strategic he is, and, at the time of writing, I’m pressing hard to carry out his plan. If we succeed, it will be a kind of jujitsu: using the rules of a transnational institution against another transnational institution to protect our sovereignty from outside assaults.
Regardless of whether this particular effort is successful, the continued onslaught against sovereignty will continue. From the United Nations, the World Court, and the ICC. From today’s increasingly radicalized Democratic Party. And, when it comes to defending our sovereignty at the Supreme Court today, we’re just one vote away.
CHAPTER 5 ABORTION AND GONZALES V. CARHART
On January 22, 1973, the Supreme Court and judicial nominations fundamentally changed, and the character of our electoral democracy was profoundly altered.
Under our constitutional system, most public policy issues are left to elected legislators. And for nearly 200 years, that was the case with abortion laws, as well. For two centuries, each of the state legislatures decided what laws would govern the practice of abortion in their states. As a result, state laws varied as different legislatures and electorates came to different determinations about the appropriate standard.
But in the decision of Roe v. Wade, the Supreme Court decreed that the people no longer had that authority. Abortion is a deeply personal issue on which passions run high. Many who favor a legal right to abortion are deeply committed to that proposition. And many who favor the robust protection of unborn children are every bit as fervent.
Our constitutional system allows for differing views to play out through the democratic process. But the Supreme Court determined that somehow abortion was different. One will scour the Constitution in vain trying to find any reference at all to abortion. The word is found nowhere in the Constitution, nowhere in the Bill of Rights, and yet, in the Court’s opinion, authored by Justice Blackmun, this brand-new constitutional right was created out of whole cloth.
At the time Roe was handed down, many liberal-leaning states across America were already in the process of expanding access to abortion. A national conversation was playing out in real-time. To borrow Justice Louis Brandeis’s famous formulation, the states were properly serving their constitutional roles as our “laboratories of democracy.” But the Court short-circuited that profoundly important debate by fabricating this newfound constitutional right in Roe. Rather than dousing the flames, the Court’s ruling poured gasoline on the fire. In the words of Justice Ruth Bader Ginsburg, herself a lifelong advocate of expanded access to abortion, the Court’s decision in Roe “seemed to have stopped the momentum on the side of change.”
When it comes to the right to life, I am deeply and unequivocally pro-life. I believe that every child is an incredible gift from God and should be protected in law. For many Americans, being pro-life is a reflection of their religious faith. For observant Jews or faithful Christians, there is a strong scriptural foundation for protecting the innocent lives of unborn children. For example, Jeremiah 1:5 declares: “Before I formed you in the womb I knew you, before you were born I set you apart.…” And Psalms 139:13–16 tells us,
For you created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made; your works are wonderful, I know that full well. My frame was not hidden from you when I was made in the secret place, when I was woven together in the depths of the earth. Your eyes saw my unformed body; all the days ordained for me were written in your book before one of them came to be.
Likewise, in the New Testament, Luke 1:41–44 recounts, “When Elizabeth heard Mary’s greeting, the baby leaped in her womb.… [And she exclaimed,] when the sound of your greeting reached my ears, the baby leaped in my womb for joy.”
But one need not be a person of faith to be pro-life. Indeed, there are compelling personal, legal, constitutional, and philosophical reasons to support protecting the most vulnerable and defenseless among us. Every parent will remember that first magical moment when you looked at your child’s sonogram. When you saw your daughter or son move or kick or suck their thumb. The pride, the love, the pure amazement of hearing that heartbeat and seeing that incredible, living, tiny child. We talk to our children before they are born, we play music for our children before they are born, we are deeply connected to our children long before birth.
That’s one of the reasons why, tragically, among abortion’s millions of victims, are so many mothers who experience grief, pain, regret, guilt, and depression for decades afterwards. In 2019, the movie Unplanned told the powerful true story of Abby Johnson, who spent eight years working for Planned Parenthood until the horror of what she saw and experienced drove her to leave and become a leading pro-life activist. The movie is brutally real and can be difficult to watch, but it is also personal, beautiful, and deeply moving. Abby, in making the movie, said she wanted it to be “a love letter to those working in the abortion industry,” and to help provide them and so many grieving mothers a pathway out.
Turning to the legal and constitutional basis for protecting life, consider Thomas Jefferson’s language from the Declaration of Independence, which committed our young nation to the proposition that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The reader will note that “Life” is the very first “unalienable Right” listed. It is the first natural right—the very securing of which, Jefferson goes on to tell us, is why “[g]overnments are instituted among Men.” Securing the right to life was the preeminent reason that America rebelled against the British Crown and that America came into existence.
When our Constitution was adopted, and for over a century thereafter, abortion was uniformly defined as a crime, and the lives of unborn children were protected by law. For the same reason, the Hippocratic oath, taken by doctors for over 2000 years—which traces back to the
Greek Hippocrates, the “Father of Medicine”—provided expressly, “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.”
Protecting human life is the central responsibility of the law, and yet those who are most vulnerable—the unborn—are completely unable to speak out for themselves. As Ronald Reagan once quipped, “I’ve noticed that everyone who is for abortion has already been born.”
In the Senate, I have been proud to stand for life throughout my career. One notable instance came early in my Senate tenure, following the horrifying details that emerged surrounding late-term abortionist and now convicted murderer Kermit Gosnell. The facts of the case were gruesome. Even The Atlantic (hardly a conservative publication) wrote about it in 2013 and is worth quoting at length:
The grand jury report in the case of Kermit Gosnell, 72, is among the most horrifying I’ve read. “This case is about a doctor who killed babies and endangered women. What we mean is that he regularly and illegally delivered live, viable babies in the third trimester of pregnancy—and then murdered these newborns by severing their spinal cords with scissors,” it states. “The medical practice by which he carried out this business was a filthy fraud in which he overdosed his patients with dangerous drugs, spread venereal disease among them with infected instruments, perforated their wombs and bowels—and, on at least two occasions, caused their deaths.…
One former employee described hearing a baby screaming after it was delivered during an abortion procedure. “I can’t describe it. It sounded like a little alien,” she testified. Said the Philadelphia Inquirer in its coverage, “Prosecutors have cited the dozens of jars of severed baby feet as an example of Gosnell’s idiosyncratic and illegal practice of providing abortions for cash to poor women pregnant longer than the 24-week cutoff for legal abortions in Pennsylvania.”
At trial in Pennsylvania state court, the jury convicted Gosnell of three counts of homicide of three infants who were born alive during attempted abortion procedures and also of involuntary manslaughter of one woman during an abortion procedure. He was sentenced to life, plus thirty years.
In the wake of Gosnell’s conviction, I joined my friend Senator Mike Lee in fighting to try to find out how many other Kermit Gosnells there might be across our nation. Together, we introduced a Senate resolution calling on Congress and state governments to both investigate and prevent abusive, unsanitary, dangerous, and illegal late-term abortion practices across America. Speaking on the Senate floor, I urged,
Everyone in this body should be supporting an investigation to make sure there are not other Kermit Gosnells across this country. Everyone who proclaims to be a champion for women and children should enthusiastically support this resolution. Anyone who proclaims himself a champion dedicated to helping the most vulnerable should be supporting this resolution.
Sadly, the Democrats objected on the floor and blocked any congressional investigation.
But the Gosnell horror show, as utterly tragic as it was, represents one specific instance of abortion policy. From a broader legal perspective, the question facing any society is whether the rule of law should presume in favor of life.
History is filled with sad and sorry examples of legal rules presuming against life, from the Dred Scott Supreme Court decision that barbarically justified treating African-American slaves as “property” and not as humans, to the Nazi propaganda dehumanizing Jews that helped give rise to the genocidal murder of the Holocaust. There are countless other examples. Predictably, whenever the law has presumed against life, the results have been horrifying.
I believe the law should presume in favor of life.
Importantly, if there comes a day when a majority of the Court overrules Roe v. Wade, the result would not be that abortion would suddenly be made illegal across America. Instead, if Roe were overruled, the state of the law would return to the status quo ante—meaning that questions of abortion would be left, once again, to elected state legislatures.
Although I am strongly pro-life, it is clear that, if Roe were overturned, at least right now, a number of states would not choose to enact robust legislation protecting unborn life. And for those of us who aspire to arrive at the day when the law protects every human life, from conception to natural death, we will have to work hard to change the hearts and minds of a considerable number of Americans for that to occur.
Encouragingly, those changes have been occurring; although there are some issues on which our cultural mores are moving in a decidedly harmful direction, America is steadily growing more and more pro-life. Our efforts to persuade have yielded fruit, and the movement has been fueled by two additional factors: (1) on abortion, national Democrats have gotten much more extreme, and (2) scientific advancement has conclusively demonstrated that unborn children feel pain and suffer during late-term abortions, and medical science has now made it possible for infants born at earlier and earlier points to survive and thrive outside the womb.
Were the matter to be resolved through the democratic process, it would enable everyone who has strong views on the subject to have a voice in the resolution. Five unelected judges wouldn’t decide the question for all of us. Here, what the people decide is not the only relevant factor—who decides is also crucial.
Legislatures can hear evidence, can hear testimony, can weigh conflicting policy arguments, and can structure different standards to meet different circumstances. The Court’s opinion in Roe attempted to fulfill precisely that legislative function, somehow divining in the Constitution differing standards that happened to reflect the justices’ flawed and limited understanding of medical science. Putting on their legislative hats, the Court decreed that differing constitutional standards would apply for the first trimester of pregnancy, for the second trimester of pregnancy, and for the third trimester of pregnancy. Needless to say, justices are not medical doctors. Nor are they legislators. Neither is the court system particularly well suited to resolving contested issues of science. And yet, in Roe, the Court purported to do just that.
The Court acknowledged that the word “abortion” appears nowhere in the Constitution. Roe purported to find this newly created constitutional right hidden in the shadows. Specifically, Roe relied on a prior case, Griswold v. Connecticut, which had engaged in mental gymnastics to conclude that the Court’s cases “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
For those who may not follow the metaphysical language, a penumbra is a ten-penny word for a shadow. So, the Court was saying, the rights in the Bill of Rights have “emanations,” which cast “penumbras,” and in those shadows is where this new right was supposedly discovered. All unbeknownst to the Framers and over a century’s worth of elected legislatures.
That is not law. It is decreeing a policy outcome that the justices happen to like.
Criticism of Roe as a judicial opinion has been nearly universal. In his dissent in Doe v. Bolton (the companion case to Roe), Justice Byron White (the lone justice appointed by President John F. Kennedy) wrote, joined by then-Justice Rehnquist:
I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers… and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
Likewise, Professor Geoffrey Stone, the former dean of the University of Chicago Law School and a clerk for Justice Brennan (who joined the majority), conceded the year Roe was decided that “[e]veryone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary.’ ” And Justice Blackmun, Roe’s author, knew it as well. When Justice William O. Douglas released his papers to the public in 1988, they included internal Court memos from when Roe was decided. Included was a memo from Justice Blackmun to the other justices explaining why he had determined to set the first cutoff at the first trimester (the first thirteen weeks of pregnancy): “This is arbitrary, but perhaps any other selected point, such as quickening or viability (of the fetus), is equally arbitrary.”
Of course, the purpose of the Supreme Court is not to draw arbitrary lines, nor to legislate public policy. As Yale Law School Professor (and later dean of Stanford Law School) John Hart Ely observed, Roe v. Wade “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Another liberal commentator, Edward Lazarus, himself a former clerk for Justice Blackmun, agreed: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.…”
In the nearly five decades since Roe, few if any issues have contributed more to polarization, anger, and division in our political process than has the arrogance of a Supreme Court majority declaring that the people had no right to decide the issue of abortion for themselves. As a result of Roe, Supreme Court nominations and confirmations are now gladiatorial battles. Robert Bork’s and Clarence Thomas’s bloody confirmation spectacles were the direct result of the justices’ setting themselves up as arbiters of an issue that otherwise would have been left to the people.