I've read a lot on dKos recently on the worry about Roberts and Roe Vs. Wade. Again and again, the issue comes up: privacy. Because the right to abortion is founded upon medical privacy, isn't it? I mean, that's what we're fighting for?
So the question is asked again and again: What is Roberts' stance on privacy?
No right to medical privacy? No right to abortion.
A right to medical privacy? A right to abortion.
But what if this assumption is wrong? What if we're following entirely the wrong line of questioning here? What if a justice could believe in a right to privacy and still rule against abortion?
I present to you the worst case scenario...
Roe Vs. Wade was founded upon a precedent, as Armando is wont to repeat, of a right to privacy found in the 14th amendment. Essentially, if the government does not have an overriding interest in interfering in your personal matters, it is to keep the hell out. That's one of the overriding principles that we, as liberals, are used to repeating as far as Roe Vs. Wade is concerned. The government has no overriding interest in interfering in private medical decisions. To us, this is so obvious as to be hardly worth talking about. After all, why should the government have a right to interfere in a woman's private medical decisions? That's the be all and end all for us.
But take another look at the decision. The niceties in there were interesting. From
FindLaw:
''(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.''
[...]
Assessing the possible interests of the States, the Court rejected as unsupported in the record and ill-served by the laws in question justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions. The state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue when life begins. Two valid state interests were recognized, however. ''[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.'''
(My emphasis.)
Let's take a look at that. What we have here, is the court essentially saying that as there is a lack of consensus as to whether a foetus, embryo, or whatever is a human life, the overriding state interest that would
otherwise occur cannot be assumed. The stronger the consensus that the potential life is a human being, the more interest the state has in preserving that potential life.
But this is a point of view that the religious right, and Catholic Church that Roberts is part of, rejects. Those groups hold that life begins at conception, and that this is an
absolute truth.
Congress has actually been trying to legislate this for a while. It's even been successful - in the legislation making it a crime to assault a pregnant woman in a way that causes a miscarriage, rather than simply increasing the punishment for criminals in such cases, the legislation defined the foetus as a human being, thus creating a
legal basis for arguing life begins at conception.
So what if we had justices who believed to the core of their beings that life began at conception? And that that idea was already in Federal Law, allowing them to offer a legal justification for ruling as such?
If an embryo, if a foetus, is a human being the whole dynamic changes. While the right to privacy could be maintained, the state's interest in protecting what would then become the innocent life of a child would kick in. One ruling calling the foetus a human life could start the ball rolling, and once that definition has been made, no further legislation to outlaw abortion might be required. Why is that?
Because if a foetus is a human life, then abortion has another legal term: murder. And we already have laws against that.
I think this is an issue we need to think about. It would be in the style of the current GOP leadership - don't do things in small degrees, make one big change, and the rest of the dominoes fall without a legislative requirement. It's like tax cuts - you don't have a long legislative process to end social welfare programs, you just cut taxes so you can't pay for them, and they die of their own accord. With abortion, all you do is redefine a foetus as a human, and the rest of the dominoes fall.
No legislative process required so less political fallout.
Irreversible until you change the makeup of the supreme court.
Laws already in place to end the practice as soon as the ruling is made.
We've heard a lot about questions that should be asked of nominees. I'd like to add another to the list: "Do you believe that life begins at conception and can you imagine a situation in which you would rule in such a way as to make clear that life begins at conception or at any stage before birth?"
It's essential that we get the answer to this question.