Tuesday, August 30, 2005

Reproductive rights: a matter of liberty, legally

With the confirmation hearings coming up, and a lot of assertions from purported allies in liberal and progressive circles that the heart of the matter is privacy -- Roberts' record on "the so-called right to privacy" and advocating a constitutional amendment guaranteeing a right to privacy -- I offer a different view: that the real issue is liberty, and what Roberts' attitudes are about due process and the 14th amendment. (IANAL - this is a lay interpretation.)

Pennywit reminds us of the 1992 opinion Justice O'Connor wrote regarding Planned Parenthood of Southeastern Pa. v. Casey:

Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

Justice Stevens, in a separate opinion, writes:

The Court in Roe carefully considered, and rejected, the State's argument "that the fetus is a `person' within the language and meaning of the Fourteenth Amendment." 410 U.S., at 156 . After analyzing the usage of "person" in the Constitution, the Court concluded that that word "has application only postnatally." Id., at 157. Commenting on the contingent property interests of the unborn that are generally represented by guardians ad litem, the Court noted: Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense. Id., at 162. Accordingly, an abortion is not "the termination of life entitled to Fourteenth Amendment protection." Id., at 159. From this holding, there was no dissent, see id., at 173; indeed, no Member of the Court has ever questioned this fundamental proposition. Thus, as a matter of federal constitutional law, a developing organism that is not yet a "person" does not have what is sometimes described as a "right to life." 2 This has been and, by the Court's holding today, [505 U.S. 833, 914] remains, a fundamental premise of our constitutional law governing reproductive autonomy.

In weighing the matter further, he clearly states:

One aspect of this liberty is a right to bodily integrity, a right to control one's person. See, e.g., Rochin v. California, 342 U.S. 165 (1952); Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535 (1942). This right is neutral on the question of abortion: the Constitution would be equally offended by an absolute requirement that all women undergo abortions as by an absolute prohibition on abortions. "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." Stanley v. Georgia, 394 U.S. 557, 565 (1969). The same holds true for the power to control women's bodies.

That is the very slipperly slope down which the radical conservatives want to push us all -- State control over our bodies. This is the legal precedent that they want to empower their efforts to dismantle the basic Constitutional rights of women.

(If they were truly against abortions, one would think they would, in addition to their battles in the courthouse and outside of health clinics, embrace non-coercive means to reduce unwanted pregnancies, such as ready and affordable access to birth control and rational sex education for teenagers in school. But they don't like these things that help women have control over their bodies. It's almost as if they oppose abortion simply because abortion would end the punishment "promiscuous" women otherwise would have to endure.)

Justice Blackmun's opinion clarifies what's at stake:

A fervent view of individual liberty and the force of stare decisis have led the Court to this conclusion. Ante, at 853. Today a majority reaffirms that the Due Process Clause of the Fourteenth Amendment establishes "a realm of personal liberty which the government may not enter," ante, at 847 - a realm whose outer limits cannot be determined by interpretations of the Constitution that focus only on the specific practices of States at the time the Fourteenth Amendment was adopted. See ante, at 848-849. Included within this realm of liberty is "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Ante, at 851, quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the [505 U.S. 833, 924] liberty protected by the Fourteenth Amendment. Ante, at 851....

[emphasis added on all excerpts]


This isn't about being "pro-abortion." And while privacy certainly plays a part in the social and legal understanding of women's reproductive rights, ultimately it comes down to liberty. What's more American than that?

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