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View Diary: Understanding the Right to Privacy And the Right to Choose (322 comments)

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  •  Am I overlooking something here? (4.00)
    Isn't supporting a Constitutional amendment to ban abortions an admission that the Constitution currently allows them?
    •  Yes (none)
      The Right to Privacy is an implied right, not stated outright. For instance, the right of the Federal Government to print paper money is an implied right because the Constitution only says that the government can strike coins.

      In any case, creating an amendment that was to completely disallow the right to privacy would take care of that implicit-ness.

      Sometimes you feel like a nut and sometimes you feel like a democrat

      by MtMan900 on Tue Oct 18, 2005 at 10:15:13 PM PDT

      [ Parent ]

      •  Not the best example (none)
        The power of the federal government to print money springs from the Constitution itself.

        The right to privacy, though certainly specifically enumerated in many instances in the Bill of Rights, is also an unenumerated right more generally preserved by the 9th Amendment.

        There is no doctrine of unenumerated powers for the federal government.

        The SCOTUS is Extraordinary.

        by Armando on Tue Oct 18, 2005 at 10:20:25 PM PDT

        [ Parent ]

        •  Not quite.. (none)
          The 9th amendment specifically gives rights to the PEOPLE that are now enumerated in the constitution.  Seems to me that privacy would be one of them....making it somewhere BETWEEN explicitly stated and implied.
          •  OOPs (none)
            this came up under the wrong post...and second what Armando said anyway now that I see his response.....

            To further this though, why don't we hear more about the 9th amendment from OUR legal scholars??  It seems that every time you get into a discussion about this stuff, the people who tout the 10th amendment always win the shouting match.  Maybe we could get Breyer to write a book about this??

            •  Plenty of writing on the 9th (none)
              Read Laurence Tribe, for example.

              While the 9th is key to understanding the abortion dispute, it tends not to be relied on in opinions (Justice Goldberg was a notable exception) because it doesn't have its own content.  This allows Scalia to disparage it, and allowed Bork to deem it a dead letter and say that it should be ignored.  To my mind, this was the basic reason Bork was unqualified to be on the Supreme Court:  he looked at the text of the 9th Amendment and said "we should flat out ignore it."  But making an affirmative particular case for a given right based on the 9th is difficult (though easier with privacy than with pretty much anything else); rather, the 9th can be seen as empowering both common law, human rights, and (increasingly) international law versions of rights.

              The Right's concern that the 9th can be used by judges to make up new rights is not totally nuts, by the way; they do serve a role in keeping us honest.  What it is, rather, is highly overblown.

              "If you [just] wanted to reduce ignorance, you could ... abort every Republican baby in this country, and your ignorance rate would go down."

              by Major Danby on Wed Oct 19, 2005 at 07:47:10 AM PDT

              [ Parent ]

    •  Not really (none)
      It would just be a clarification on an issue which is arguably constitutionally ambiguous.
    •  Why did we need (none)
      an ERA, then? To clarify the situation so nobody could weasel out.

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Tue Oct 18, 2005 at 10:20:17 PM PDT

      [ Parent ]

    •  yes but (none)
      The direct answer to your question is yes.*

      *The Constitution allowing abortion is compatible with a state's outlawing them. So that the constitution does not disallow abortion doesn't, of course, mean that there is a positive right to choose. And so supporting a constitutional amendment is perfectly compatible with supporting overturning Roe. In fact, it could be painted as an act of political and moral restraint. She really thinks that abortion should be banned, but all judges have the power to do is turn the question back to the states.

      Fox News: Always right, often wrong.

      by jneufnyc on Tue Oct 18, 2005 at 10:24:43 PM PDT

      [ Parent ]

      •  Restraint? (none)
        it can hardly be labelled that.

        It would pierce the right to privacy.

        It would require much more than you say.

        I think I make the point clearly in this post.

        The SCOTUS is Extraordinary.

        by Armando on Tue Oct 18, 2005 at 10:26:59 PM PDT

        [ Parent ]

        •  right (none)
          Hence "painted as." I wasn't clear.

          Fox News: Always right, often wrong.

          by jneufnyc on Tue Oct 18, 2005 at 10:29:43 PM PDT

          [ Parent ]

        •  Defining a person (none)
          in the Constitution would not technically pierce the right to privacy in the same way that overturning Roe would.  Overturning Roe says "It is up to the states to determine if the right to privacy extends to abortion," while an amendment says "the right to privacy still exists, but a blastocyst is a person with full rights, and the right to privacy cannot take priority to the right to life."

          The amendment can be passed without first overturning Roe, but it would be worse for most people to have Roe overturned than to have an amendment, provided that we're talking either/or.

          "I'll tell you this, no eternal reward will forgive us now for wasting the dawn " -Jim Morrison

          by Easy B Oven on Wed Oct 19, 2005 at 04:48:42 AM PDT

          [ Parent ]

      •  If Miers feels it's ok (none)
        to have an abortion if the mother is in danger....does that mean she is for partial birth abortion??

        If not us, who? If not now, when? L. Feuctwanger

        by mattes on Wed Oct 19, 2005 at 10:00:46 AM PDT

        [ Parent ]

    •  Argument in the Alternative (none)

      A favorite tactic of lawyers, e.g. Miers in this case. "I don't believe that the right to privacy (whatever that is) includes a right to abortion"; if as it stands it does, I would support a Constitutional Amendment revising the right to privacy to NOT include it."

      Kind of like, "my client Scooter did not reveal classified information, and if he did, he did so unknowingly and to a reporter with a security clearance, etc etc etc."

      Armando thanks for the great think piece. Your point is well taken that attacking Miers for supporting the abortion ban amendment is not really germane to the main discussion.

      One useful clarification: what Rethugs DO support the amendment in question? I would guess, most all of them, no? What is Bush's position on it?

      Certainly in thinking about it one can why the argument that overturning Roe would lead to progressive elctoral victories holds some weight. Not that an overturning wouldn't be a long-term disaster for abortion rights, leading to far more restrictive rules in most every state even after a backlash.

      •  It is central to their Roe objection (4.00)
        it seems to me.

        See, the compelling State interest is the fetus. It is critical to overcoming the right to privacy.

        Indeed, I find the arguments underlying the Amendment the most intellectually honest one against Roe.

        The arguments abotu judicial activism and the like are just so much hogwash.

        The issue is the State's interest in the fetus.

        All the rest of this is noise.

        The SCOTUS is Extraordinary.

        by Armando on Tue Oct 18, 2005 at 10:31:14 PM PDT

        [ Parent ]

        •  But Armando . . . (none)
          "The state's interest in the fetus" falls easily to a purely logical-ethical argument . . . I don't mean Judith Jarvis Thompson's "Unconscious Violinist" . . . I mean a similar but cleaned-up version.  It's easy enough to state, as I'm sure you know.

          "In the beginning the universe was created. This has been widely criticized and generally regarded as a bad move." -- Douglas Adams

          by LithiumCola on Tue Oct 18, 2005 at 10:38:15 PM PDT

          [ Parent ]

        •  but if you add Griswold to the mix... (none)
          ...what you get is, the state's interest not only in the fetus, but in the sex act itself.

          And that, for many of the right wingers (though not all), is the real underlying agenda.  Recall the ferocious fury when Clinton's health secretary dared suggest that masturbation was safe sex.  (And instead of caving in and firing her, Clinton should have dared anyone to step right up and claim that they themselves had never done the deed!)

          Today it's the unborn child, tomorrow the unconceived child, and presumably the next day it's the inconceivable child.  

        •  The compelling state interest (none)
 to protect citizens from harm by other citizens.  Be very clear and specific here!  The issue turns on whether or not a fetus is a citizen and the reaffirmation of Roe in Casey makes it clear they believe a fetus must be able to survive outside the womb (be viable) to be so considered.  There are two primary approaches to attack:

          • that a right to privacy exists in the first place; privacy being your affirmative protection against the government's ability to intrude at all into aspects of your life which have no impact (except consensually) on others - 'be secure in home and...person'.  

          • that a non-viable fetus is still a citizen meaning that despite any privacy expectations by the first party (mother) the latter (fetus) can expect the state to protect it against harm.  In this case, the state need not explore the dimensions of the penumbra - the state has a compelling interest in

          Recent court rulings effectively gutting the 4th have rested on an understanding of privacy as the right to not have your secondary sexual features and genitalia looked at - that is more or less where the line seems to be drawn - the kinds of protections provided by a Burqua.  This is what the religious right envisions - to them, privacy does not include personal autonomy - they see nothing wrong with the 'state' (tyranny of the majority) being able to regulate all aspects of every individual's life.  I actually believe these folks get into a rage less about the 'dead babies' than they do about there being limits on their ability to exert external influence on every aspect of other individuals' personal lives.  Remember: miscegenation laws, blue laws, contraception, sodomy laws, etc. are part of our very recent history.  Indeed, the 'pre-natal abuse' laws (criminalizing addicted women for getting pregnant) are the latest example of this.  

          Of course, these kinds of laws have been losing popular & enforcement support for quite some time - they should be struck down so as to assure equal protection (ie, not selective enforcement) issues - and that process is ongoing.  Of course, there are still some backwaters - one of my local state reps. (to the state house) just recently got a 'baggy/saggy pants' law passed - gee, wonder who the target is there?  Still, the religious right would find themselves really getting their asses handed to them at every political level the moment they significantly reverse this trend.  They are able to get as far as they have largely because they are ineffective at forwarding their agenda and most people ignore them.

          The more likely successful class of attacks will go after the standing of the fetus.  Viability itself is a moving target, although it's unlikely to ever break the 1st trimester barrier.  Thus the 'fetal pain stimulus' studies, and now the unique-individual-by-way-of-genetics questions being raised are attempts to assert that zygotes (not even blastula) are citizens.  I honestly think we need to worry more about this one.  We need Plan B and we need RU-486 - to take away the D&E ("partial-birth") procedure issue (poster).  

    •  No it isn't (none)
      It merely concedes the proposition that SCOTUS has interpted the Constitution to allow abortions and teh only way to overrule it is via amendment.  It does not concede that the Constitution, properly interpreted mandates the outcome in Roe.

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