Friday, November 04, 2005



It has long been my view that the overturning of the infamously famous Supreme Court decision "Roe v. Wade" would have less practical effect than many on either side of this bitter debate would admit, but being unschooled in Law I have avoided the subject, hoping to encounter a more learned exploration of this position.

While perusing the archives of FowNews I encountered this somewhat dated article in the politics section. From 9/22/05, " Experts See Legal Abortion Without Roe." Note this work predates the Miers controversy.,2933,170078,00.html

Clearly, Roe is only one brick in the wall, even if it is the Keystone.

Why don't we hear this from advocates on either side?

The reason for this omission from the pro-abortion side is fairly clear, I think. In the almost 40 years since Roe, abortion has become a rallying point, a multifaceted industry, and an absolute "right." Few rights have been so consistently upheld by the Supreme Court.

When you have nothing left to win, you can only lose.

Furthermore, if Roe goes and nobody is affected, there may be a lot of pink slips at NARAL and Planned Parenthood…

The anti-abortion side's motives are more obscure, I think, because they are more philosophical and religious. For many on the "anti" side, overturning Roe is like reaching the Promised Land. To suddenly find it full of stones, thorns, and scorpions is unsettling. The goal of many that oppose abortion is its complete eradication, and for people focused on this goal, realizing this milestone is but the beginning of a larger fight will be a bitter thing.

There is also a larger issue here, I think, a confluence of many smaller issues connected to the precious intangible, privacy.

Once upon a time there was a land called America where the Church was very important in people's lives. America in 1800 was a land whose laws relied heavily on tradition, including religious traditions like the Ten Commandments.

But law was law and sin was sin.

To people today, those laws had some surprising omissions. There were no laws against abortion, suicide, the taking of drugs, or self-medication. In fact, most abortions attempted at the time relied on self-administered potions.

But true to the aggressively evangelical atmosphere of the times, gradually over the next 120 years or so America saw the criminalization of sin. This trend peaked with the failure of prohibition, and has slowly reversed since.

It seems even the Godly need some sin…

Many people see this as a retreat from what they earnestly but erroneously believe is an ancient, time-honored system of values, even a God-given one, not just something of the 19th century.

This has become the great battle of our times.

Enough philosophy. Spirited debate is stimulating but constant, intractable conflict is debilitating to a society. Enough of "Penumbras" emanating from the Constitution and its Amendments which never in fact mention Privacy directly. I think it is time the whole issue of privacy and personal autonomy was addressed as one inclusive subject in a Constitutional Amendment.

This isn't a one-sided issue. It's everyone's issue:

If privacy protects one's right to seek an abortion, it also protects one's right to home-school.

Where one man might argue a "right" to take drugs at home as a matter of privacy, another may argue the right to carry a concealed weapon.

The private "right" to self-medication isn't all that far removed from the right to take natural remedies, herbs, and vitamins unsupervised - a right currently under assault. The complexity of the whole affair is seen in the relation of this issue to the morning after pill that many think should be sold over the counter…

A right to die? Gay and Lesbian rights? Rights of unmarried cohabiting adults?

How about the privacy of your "informational person?" Your medical records?

Your DNA???

Even the mundane harbors privacy implications. How about "Do Not Call" laws? Unlisted phone numbers?

And what of those new invasions technology will certainly make possible?

The basic Privacy right touches all this and much more.

As a battle fought piecemeal, the issues are inevitably subjected to the whims of the popular cause, the powerful interest, and even the squeaky wheels. No truly equitable, coherent, fair solution will arise from such treatment.

The Constitution isn't perfect. If it had been perfect as written, us white male landowners would be running the show and America would likely be unrecognizable. Many issues were avoided or tabled by those long-ago thinkers. Many certainly never occurred to them. I very much doubt "privacy" was ever a concern to Thomas Jefferson of James Madison. I expect for them it was water to a fish, something taken as God-given, and not to be forfeited short of the seat of that Almighty God.

It's time to settle this once and for all.

Or at least for the next century or so…

I'm a pro-life catholic and definitely see abortion as killing what would be a viable human (in most cases). However, the reason I would like to see Roe overturned is the same as most conservatives: it's bad law, and ridiculously so. The privacy argument just doesn't hold water now or then.

Furthermore once overturned, all 50 states, even the reddest of red, will inact some kind of working abortion legal apparatus. It's just too convenient of a tool for women. Abortion is here to stay. And I would guess all the polls say that.

So I agree that overturning Roe won't change anything. That's ok if that's what the people want. But let's get rid of the bad law and let the states decide.
Whether or not overturning Roe would have an affect on “abortion rights” is in reality just the tip of the legal iceberg. What is at stake is the whole relationship between the rights of individuals vs. the rights of states vs. the limits of the federal government.

Those that would argue that the Supreme Court invented the right of privacy are only partially right. It would be more proper for the court to have ruled that the federal government is limited in its constitutionally defined role to impinge on the private affairs of the citizens of the United States. The fact is that the relationship between individuals and the particular state in which they reside is largely undefined by the constitution Add to this the fact that the federal government is only charged with protecting the enumerated individual rights. Since the right of privacy is not enumerated as a right of individuals the court should not have any standing on issues of privacy vs. the states.

I tend to take the argument one step further with the proposition that the combination of the specified function of the federal government coupled with the bill of rights only applies to the federal government and has little or nothing to do with the relationship between a state and the individuals who reside within a particular state. I also realize that my proposition would require the reversal of decades of legal precedent which given the enormous weight of the status quo is not even remotely likely to happen.

I can dream can’t I??
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