OK

Ed Kilgore writes a post today on Harriet Miers and her seemingly extreme political view seeking the absolute ban of abortion via Constitutional amendment:

Let's remember what the Human Life Amendment (in its most common iterations) was designed to do: not simply reverse Roe and return the subject of abortion to the states and to Congress, but instead to permanently ban any federal or state legislation permitting abortion at any stage of pregnancy after conception (with the sole exception of conditions threatening the life of the mother).

. . . In other words, support for the Human Life Amendment is the most extreme position imaginable on abortion, and one which--precisely because it reflects the belief that the courts should define the word "person" as contained in the Equal Protection Clause of the 14th Amendment as including embryos--is based on an implicit injunction to the most radical form of judicial activism. Indeed, for all the whining about judicial usurpation of legislative prerogatives that's become so common on the Cultural Right, it's this--a judicial reading of the anti-abortion movement's interpretation of the word "person" right into the Constitution--that has long been their ultimate fantasy, abandoned for tactical reasons in favor of the current drive to undermine and then reverse Roe.

I think Ed's point is an interesting one, but ultimately, less important than Miers' view on the Constitution AS IT IS. And it reminded me of a cross blog spat I had with Ed Whelan of National Review when he tried to label Scalia and Thomas as holding the "politically neutral" view on the right to choose. Whelan wrote:

The third position is that the Constitution generally does not speak to the question of abortion. Under this substantively neutral position, American citizens would have the constitutional power to determine through their state representatives what the abortion policy in their own states would be. This neutral position -- which three members of the current Court, Rehnquist, Scalia, and Thomas, embrace -- also happens to be the proper reading of the Constitution (as I explain more fully here).

Insofar as sensible political labels might be applied to these three positions, it would seem plain that the first (pro-abortion) position would be labeled liberal (with the Roe version of that position being radical), the second (pro-life) would be labeled conservative, and the third (neutral) would be labeled moderate.

Of course this was nonsense both legally and politically. Moreover, it ignored the mainstream judicial discussion that actually defines the legal issue surrounding abortion rights. To wit, at one point does the compelling interest of the State overcome the fundamental right to privacy? That is the issue decided in Roe and the issue decided in Casey.

I'll discuss this in more detail on the flip.

The Casey Court wrote:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685 . Our cases recognize 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. Eisenstadt v. Baird, supra, 405 U.S., at 453  (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166  (1944). 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 liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
. . . 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.

That was the question decided in Roe and in Casey. As to the question of whether the State could meet its burden to overcome the fundamental privacy right, the Casey Court said:

We have seen how time has overtaken some of Roe's factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973 and advances in neonatal care have advanced viability to a point somewhat earlier. [cites omitted] But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.

And that is the legal question that is central to the legal issue - when does the State's interest overcome the fundamental right to privacy.

Only extremists can argue that the fundamental right to privacy does not extend to a woman's right to choose. It is simply illogical to think otherwise. This is why Griswold is central to the Roe and Casey holdings. There is no intellectually honest method to distinguish the right to contraception with the right to choose.

The difference in the cases is in the potential existence of a compelling interest carried by the State to overcome the fundamental right to privacy.

To discuss the issue in other terms is to adopt the extremists' legal view, on either side of the debate. So, while Ed's discussion is of interest, it is not to the point, in my view, of understanding Miers' view of the right to privacy and the right to choose.

Originally posted to Daily Kos on Tue Oct 18, 2005 at 10:00 PM PDT.

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