Posts Tagged ‘roe v. wade’


Right to Privacy?

October 16, 2008

In last night’s debate Abortion finally came to the forefront.  McCain called Obama out on voting against partial birth abortions, and against legislation which would protect babies born after failed abortions.  Obama tried to weasel his way out by presenting his side of the story.  It seemed viable…except for the small fact that it was all lies.  Obama is a great speaker and I see why those who don’t do their homework would vote for this guy.  However, I don’t believe one word which comes out of his mouth.  I do my homework and find the truth. 

Related to abortion, the topic of Judicial Appointees was covered by the candidates.  Obama said some things which made me cringe.  While speaking, Obama, a supposed Constitutional scholar, misspoke on Roe v. Wade.  It is true that in Roe, when it first came down, the Court created a new right to privacy under the 14th amendment.  The right to privacy, in this sense, is nowhere to be found in the Constitution.  In fact, the only place in the Constitution that infers a right to privacy are in the 4th, 5th, and 6th amendments.  In these amendments “the people” or the accused have the right for the government to not illegally search or seize, to be deprived of liberty without due process, and the right to a public and speedy trial free from inducement during “trial like confrontations”.  There is also some mention of the right to privacy in the 3rd amendment during times of peace. 

Nevertheless, the Court in Roe held that during the first trimester, the mother’s doctor had the right to terminate the fetus.  During the second trimester, the mother’s doctor had the right to terminate the fetus if the mother’s health outweighed the health of the fetus.  During the third trimester, the state’s interest in the baby prevailed and could only be terminated if there was a substantial risk for the mother’s health.  This right to privacy was “borrowed” from Griswold v. Connecticut under the cloak of substantive due process

However in 1992, the opinion in Roe was “reinterpreted” in Casey v. Planned Parenthood of PA.  In this case the Court did away with the trimester system completely.  The Court opined that the right to privacy was bogus, and the Roe court really wanted to say there was a right to choose.  The government may infringe upon the women’s right to choose unless there is an undue burden on the mother’s right.

Obama, and the majority of pro-death pro-choice advocates, still don’t understand that abortion is no longer a privacy issue.  It kills me to think that he, a Harvard law grad, either doesn’t understand the issue or he doesn’t acknowledge that the right to privacy is a bogus concept.  To tell you the truth, the right to choose is not a right endowed by the Constitution, but don’t get me started.

There will be some Supreme Court Justices who resign in the next 4 years.  We cannot allow Obama, and a Democratic majority in both houses, to appoint and sustain Judges who look beyond the framer’s intent.  Nor can we allow Judges to create law from the bench by creating substantive due process rights.  This is an important issue and I wish the GOP would have begun hammering this issue a year ago.  I hope not all is lost.



Yes we are slow today, but you would be also

October 3, 2008

So let’s start the ball rolling.

Here is Case Western Law Professor Jonathan Adler’s take on the VP candidate’s Constitutional leanings. Mind you, the candidate that doesn’t shoot moose claims to be a Constitutional law professor although he finished near the bottom of his Syracuse Law School class. 

Here is Professor Adler from Volokh:

I am puzzled by a few things about the Sarah Palin’s and Joseph Biden’s responses to Katie Couric’s questions about Roe v. Wade and federalism.

I found it odd that Palin could not name another Supreme Court decision with which she disagreed. After all, we know that she is aware of at least one Supreme Court decision other than Roe v. Wade with which she disagrees. Just over a month ago she criticized the Supreme Court’s decision in the Exxon Valdez case, slashing the punitive damages awarded by the trial court. So did she simply freeze up and forget? Was she afraid of a ‘gotcha’ comeback if she named a specific case? Or is she that much of a knucklehead that she can’t even remember what she thought of the Court several weeks ago? My read of the video is that the first is most likely, but I’m sure others will disagree.

Biden, the constitutional law scholar and former Chair of the Senate Judiciary Committee, spoke more smoothly and authoritatively on the issue. Yet while his defense of Roe may have sounded thoughtful at a superficial level, it was actually quite incoherent. Instead of saying that he thinks the abortion right is a fundamental liberty that deserves constitutional protection — which he only hinted at later, and would be a more straightforward way to defend Roe and an abortion right under the Constitution — Biden explained that the Court’s decision is “as close to a consensus that can exist in a society as heterogeneous as ours.” Setting aside his focus on Roe, and his description of Roe‘s initial holding as if it were still the law of the land and had not been supplanted by Casey‘s “undue burden” test, his rationale is problematic on several levels, particularly for someone who holds himself out as an expert on constitutional law.

First, if the aim is a rule that embodies or approximates a national “consensus” on an issue, there is no reason to believe that the imposition of a uniform constitutional mandate by the Supreme Court is more likely to embody such a consensus than will the action of the legislature. Not only is the Court less responsive to popular opinion than the legislature, Supreme Court decisions are also more difficult to change than statutory enactments. Thus, even if a the Court gets it right at a given point in time, it is exceedingly unlikely that the Court’s unaltered judgment will reflect a social consensus over time. If, as Biden claims, the aim is to embody or approximate the social consensus, one has to take into account the fact that popular opinion shifts, but Roe does not.

Second, if the aim is to have abortion laws that come as close as possible to embodying public values and preferences, any nationally uniform rule, whether permissive or restrictive, is less optimal than leaving the matter to the separate states. Allowing individual states to adopt their own rules will result in a greater percentage of the public living within a jurisdiction that imposes abortion rules with which they agree. To illustrate, consider a hypothetical nation with two states of equal populations. The national preference in favor of permissive abortion rules is 60% to 40%. But in State A the preference for permissive rules is 75% to 25% and in State B the preference for more restrictive abortion rules runs 55% to 45%. With a national rule reflecting popular opinion, 60% of the people live under a rule they support. Allowing each state to adopt its own rules, however, results, in 65% of the people ((75+55)/2) living under a rule they support. So, if the aim is a set of rules that reflects “consensus” within a heterogeneous society — and this is the premise that Biden himself provided in the interview — then the federalist approach is superior to a national rule, such as that embodied in Roe (or, for that matter, a national rule embodied in a constitutional amendment, such as the proposed “Right-to-Life Amendment.”)

My point is not that Biden is wrong to defend Roe. It may be difficult to defend the reasoning of Justice Blackmun’s opinion, but reasonable people can and do disagree over whether the Constitution should be read to protect an abortion right, as well as on the question of whether Roe should be upheld on precedential grounds. Rather my point is to show that the basis upon which Biden chose to defend Roe — the desire to approximate “consensus” in a heterogeneous society — cannot justify the outcome he seeks to defend, and reflects a poor understanding of our constitutional system (particularly for someone of his background). While Biden speaks about these issues with in an authoritative manner, and has substantial experience discussing and debating constitutional questions, the substance was sorely lacking in this interview.

UPDATE: Brian Kalt has more thoughts on the interviews here. His conclusion:

I would have been much happier if Palin had given better answers to Couric. But her lack of knowledge of constitutional law would assumedly lead her to rely on others for advice on such matters. She doesn’t know, but surely she realizes it. Biden, by contrast, has the smooth confidence of someone who has been immersed in these issues for decades. But he’s wrong. To me, that’s actually scarier.