Roe v. Wade: The Original Chewbacca Defense — Over the centuries, scholars, judges, and philosophers have all helped to shape our legal nomenclature. So have Wookiees.

Attorneys say that when the law favors your case, argue the law; when the facts are more sympathetic, argue those instead. What if you’ve got neither? Well, you can try arguing stuff that’s totally irrelevant to the matter at hand. Two decades ago, an episode of South Park gave this approach a new label: the Chewbacca Defense. A fictional Johnnie Cochran was shown deploying it, much to opposing counsel’s chagrin.

…ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!

Opposing Counsel

Damn it! … He’s using the Chewbacca defense!


Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor, with a bunch of 2-foot-tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I’m a lawyer defending a major record company, and I’m talkin’ about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you’re in that jury room deliberatin’ and conjugatin’ the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.

Yet while the term was novel, the underlying strategy wasn’t. In fact, even the Supreme Court sometimes uses it to justify a ruling. Now, I’m not much of a Star Wars fan, but since Chewie is back on the silver screen, we’re going to look at Roe v. Wade and see how a real life version of the Chewbacca Defense got put to use.

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In Roe, the Court found a constitutional right to abortion. You might think that would be difficult considering the Constitution says nothing about abortion, but Justice Harry Blackmun wasn’t deterred. He said it was part of the larger “right of privacy”…which the Constitution says nothing about either. As Blackmun himself acknowledged, “The Constitution does not explicitly mention any right of privacy.”

So, what’s the best way to argue that an unseen right is hidden away within another right, itself unmentioned? Simple: use a whole lotta Chewbacca.

In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.

In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy.

They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153]   (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

How do a bunch of decisions involving pornography, police search procedure, telephone wire tap use, foreign language instruction, private education, interracial marriage, birth control, and the distribution of religious materials by minors create a right to kill your child? I don’t know. And I’m not sure that Justice Blackmun knew either, because he didn’t really say. He just insisted that it does.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

He went on to talk about “the detriment” that comes with being denied the chance to abort. The detriment that comes with being aborted got less attention for some reason:

Ignored too was how abortion doesn’t just harm children in the womb. It’s also a great way to cover up sexual abuse, something that Timothy SmithGary CrossJohn Blanks, Jr.Adam Gault Joseph ColesKevon WalkerEdgar RamirezJohn SzoradyGrey David WoodsLuis Gonzalez-JoseAndrew KingJohn Haller, and dozens of other child rapists know first hand. The abortion industry doesn’t make it difficult to do, either: in 2014, a staff member at Planned Parenthood (America’s largest abortion chain) admitted under oath that “being thirteen and pregnant alone is not a red flag.”

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The detriment abortion imposes on women failed to come up as well. There’s evidence suggesting more than half of women who abort are pressured to do so, with threats of financial coercion or personal blackmail sometimes awaiting those who refuse. The consequences can be more extreme, as others have been shot, stabbed, bludgeoned, burned and smothered instead.

The Supreme Court’s use of Chewbacca Defense-style reasoning didn’t stop with Roe v. Wade; subsequent abortion cases featured it too. The good news? Pro-lifers have made judicial appointments one their top priorities.

And until Roe is reversed, we can demand that Planned Parenthood’s funding get redirected to community health centers instead. Unlike Planned Parenthood, federally qualified health centers (FQHCs) don’t perform coerced abortions for rapists  and abusive partners. What do they offer? In 2017 FQHCs provided women with over seven hundred thousand mammograms. That’s about five hundred thousand more than Planned Parenthood.

Apparently there are quite a few people thrilled to see Chewie in theaters again. I’m happy for them, but I’d be even happier if the Supreme Court would drop the ploy that bears his name.

The original version of this article was published on December 29, 2015 at Live Action News. This reprint has been updated, with permission.

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