< PREVIOUS ] [ 2005 Index ] [ Ed Quillen HOME ] [ SEARCH ] [ NEXT >
Now that there's a Supreme Court nominee, a federal appellate judge named John G. Roberts, Jr., there are fears that if he is confirmed, the 1973 Roe vs. Wade case that legalized abortion will be overturned.
Those fears are not groundless. In 1991, when Roberts
was deputy solicitor general in the justice department of
Bush the Elder, he argued that Roe vs. Wade was
wrongfully decided and should be overturned.
In essence, the Supreme Court held in 1973 that there
was a fundamental right to privacy
in this matter,
and that state laws which infringed on this right were
unconstitutional. To some degree, this was based on the
court's 1965 ruling in Griswold vs. Connecticut, which
invalidated a state law that banned birth control: Any
person who uses any drug, medicinal article or instrument
for the purpose of preventing conception shall be fined ...
or imprisoned.
It has been argued that there's no right to
privacy
specified in the Bill of Rights, and thus
courts should ignore it, but by similar logic, the U.S. Air
Force is a violation of the federal constitution. In
Article I, Section 8, Congress is given power To raise
and support Armies
and To provide and maintain a
Navy,
but there is no constitutional authority To
establish and maintain an Air Force.
We just assume that the U.S. Air Force is a logical extension of the other military authority specifically granted to Congress.
In Griswold, Justice William O. Douglas delivered the
majority opinion. Even is there is no explicit right to
privacy in the Bill of Rights, he wrote, there are
provisions for privacy in the Bill of Rights, like the
Third Amendment's prohibition against quartering soldiers
in private homes in peacetime, and the Fourth Amendment's
explicit affirmation of the right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.
Thus state intrusion into an intimate and personal
matter was a violation of personal rights. Justice Potter
Stewart dissented. He said the Connecticut law was stupid
and unenforceable, but we are not asked in this case to
say whether we think this law is unwise, or even asinine.
We are asked to hold that it violates the United States
Constitution. And that I cannot do.
So how far would the court roll back the right of
privacy if Roe vs. Wade was overturned? And how much
support would it get from all those right-thinkers who
constantly tell us they're for smaller government and more
individual responsibility? It seems logical that if
government claims power over abortion, then it could just
as reasonably require abortions (China with its one
child per family policy
) as forbid them.
The immediate effect of overturning Roe v. Wade would be to return the issue to the states, where it had been before 1973.
On April 25, 1967, Colorado became the first state to liberalize its abortion laws; the bill was written and pushed by Dick Lamm, then a Democratic state representative, it passed a Republican legislator and was signed by a Republican governor, John Love. A similar bill was signed two months later in California by Republican Gov. Ronald Reagan.
It didn't hurt the political careers of Lamm, Love or
Reagan. Since the new state laws allowed abortions to
protect the mother's mental health,
a term subject
to much latitude in interpretation, they essentially
legalized abortion for anyone who could afford to get a
supportive medical opinion.
But abortion wasn't a major political issue then. It is now, although it's a free ride for liberal and conservative politicians as long as Roe v. Wade is in force. They can say whatever they want, knowing that it doesn't matter.
If Roe v. Wade is overturned, then every race for every
seat in the state legislature could turn into a referendum
on abortion. Education, highways, prisons, water, taxes --
all these could be ignored once the activists get revved up
with their mantras about the sanctity of life,
a
life that apparently ends at birth, since they quit caring
about it then.
Abortion will be legal in some states, and a felony in others. Zealots will push for a constitutional amendment, along with federal laws banning travel across state lines for an abortion. Enforcement will apply to poor women riding the bus to another state, not rich ones in private jets who can go to Canada or Switzerland or some other civilized country.
It will be a mess that further clogs the court system and burdens law enforcement. Roe v. Wade may have been a faulty decision by some legal reasoning, but at least it put the moral responsibility where it belongs -- on the individual.
< PREVIOUS ] [ 2005 Index ] [ Ed Quillen HOME ] [ SEARCH ] [ NEXT >