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View Diary: Opening the Door (281 comments)

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  •  I do not agree (none)
    Take the opinion of Justice Potter Stewart, voting with te majority in Roe after dissenting in Griswold:

       Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. 2 So it was clear [410 U.S. 113, 168] to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. 3 As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

              "In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 . The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 -239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ; Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v. Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 . [410 U.S. 113, 169]

        As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speakingincludes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).

        Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).

    Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

    The SCOTUS is Extraordinary.

    by Armando on Tue Sep 13, 2005 at 07:58:59 AM PDT

    [ Parent ]

    •  But (none)
      that passage doesn't mean that Roberts cannot accept that a right to privacy exists, even as to abortion, and yet still hold that the state's interest in protecting life (even in the case of an unborn fetus) supercedes that right or at least allows the state to restrictr its exercise.

      Roberts might just balance the interests balanced by the Roe majority differently, using the same analytical frame work.

      In other words, while I find his apparent acceptance of Griswold encouraging, it does not signify to me that abortion rights are safe if he can be taken at his word.

      •  Fetus rights? (none)
        That would be new and unprecedented.

        The SCOTUS is Extraordinary.

        by Armando on Tue Sep 13, 2005 at 08:37:12 AM PDT

        [ Parent ]

        •  Roe itself allows prohibition in the 3rd trimester (none)
        •  I don't think fetus rights (none)
          are directly mentioned in the cases, but I believe the standard is the balancing test of the State's rights in the unborn, as discussed in Casey.

          The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty.

          although it's getting late, you still have plenty of time

          by maracuja on Tue Sep 13, 2005 at 11:07:05 AM PDT

          [ Parent ]

          •  Correct (none)
            The notion that the state has an interest in protection of potential life is hardly unprecedented.  It is a theme than runs through the jurisprudence in this area.  Armando is correct that an express recognition of fetal rights would be unprecedented, but the practical effect of recognizing a state interest in the area amounts to the same thing if taken too far.
      •  Word (none)
        What I think is missed a lot in all this is that its not Roe that is under threat directly, its that it is under threat indirectly.  The wittling away at Roe, via Parental rights to know, requirements for judicial review  - ie teens must request permission from the court, first, second, third trimester restrictions, limits on drugs, etc....all these things are the real threat.  

        I learned this listening to someone from one of the right-to-choice groups talking about the court and Roe etc.  Their feeling is that Roe is too much of a political hot button to be directly it is secure.  But there is much damage being done to rights at the state level and with the SCOTUS support.  This where I want to know where Roberts stands.  When it comes down to it, you really need to know the candidate's ideology.  If they dont have one, they are lieing....even not having one would mean you still have one by default even if that means indifference.  The fact that this guy worked hard for Regan, Bush, and clerked under Rhenquist is all a big tip off.  He didn't have to do those jobs just to pay his rent.  So I dont buy this BS about being forthcoming today - its all hoo-ha.  Look at his carrer record and the things he has spent his time on, thats what he cares about.  Anyone can say anything on a given afternoon. - Collective Political and Community Journalism by NYers for NYers

        by atomicBirdsong on Tue Sep 13, 2005 at 09:23:42 AM PDT

        [ Parent ]

    •  Substantive due process?? (none)
      Potter Stewart reconciled his dissent from Griswald and his concurrence in Roe based on a substantive due process argument.  See eg
      As you may well know, the concept of Substantive Due Process is no longer the coin of the realm in the Supreme Court.  While it was used as "filler" in the past when the Supremes wanted to achieve a particular result but couldn't find the textual basis for the result, it has fallen on hard times of late.  I wouldn't cite to these quotes expecting any of the current Supremes to give you a high five.  Stare Decisis is the way to go, not substantive due process.

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