By Dave Andrusko
Ed Whelan writes a column called “Bench Memos” for National Review Online and another that he calls “This Day in Liberal Judicial Activism.”
Today’s exercise in judicial activism stems from a case decided June 1, 1992, about which we wrote early and often. Here’s Mr. Whelan’s summary description.
In Davis v. Davis, the Tennessee supreme court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail….” Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.
Why? Whelan concludes
The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected–wrongly, as it turns out–to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe.
For her good work, the following year Justice Daughtrey is appointed to the Sixth Circuit by pro-abortion President Bill Clinton.
But there’s more—much more.
The 1989 trial of Davis v. Davis took place in the courtroom of Judge W. Dale Young. The world famous geneticist Jérôme Lejeune testified in the custody dispute over seven human embryos that had not been implanted and were cryogenically preserved.
I didn’t know as much as I should have back then, essentially only that Dr. Lejeune had discovered the genetic cause of Down syndrome in 1958. And I knew he was fiercely pro-life and the recipient of numerous awards from presidents and popes.
But it wasn’t until I read everything I possibly could about the Tennessee trial that pitted Mary Sue David against her soon to be ex-husband Junior Lewis David that I came to understand how brilliantly persuasive Dr. Lejeune could be.
Testifying as an expert witness, he described these little one as “tiny human beings deprived of time.” He drew brilliant analogies and metaphors. My favorite was the cassette (remember, this is 1989):
“Now, chromosomes are a long thread of DNA in which information is written. They are coiled very tightly on the chromosomes, and, in fact, a chromosome is very comparable to a mini-cassette, in which a symphony is written, the symphony of life. Now, exactly as if you go and buy a cartridge on which the Kleine Nachtmusik [A Little Serenade] from Mozart has been registered, if you put it in a normal recorder, the musician would not be reproduced, the notes of music will not be reproduced, they are not there; what would be reproduced is the movement of air which transmits to you the genius of Mozart.
It’s exactly the same way that life is played. On the tiny minicassettes which are our chromosomes are written various parts of the opus which is for human symphony, and as soon as all the information necessary and sufficient to spell out the whole symphony, this symphony plays itself, that is, a new man is beginning his career.”
By the end of the trial, Judge W. Young concluded, “Cryogenically preserved embryos are human beings…. Human embryos are not property. Human life begins at conception. Mr. and Mrs. Davis have produced human beings, in vitro, to be known as their child or children.”
Alas, that was not to be the final word. That came from the activist Justice Martha Craig Daughtrey.