If If Roe v. Wade is overturned, everyone should worry, not just pro-choice supporters
| By elainethefirst - Jul 20th, 2005 at 11:47 pm EDT |
| Also listed in: Campus Progress Summer Blogathon |
Lately it has become almost in vogue to disparage Roe v. Wade as a legal opinion. Its main holding though, the "right to privacy" is sound, and if Roe is overturned on those grounds (which I think it would have to be), then all of us, and not just those of us concerned with women's reproductive rights, should fear.
Strict constructionists like Antonin Scalia have made it seem as if the U.S. Constitution enumerates individual rights. Scalia's opinion is that a right to abortion cannot be found in the constitution, therefore there is none. He says so a couple of times in his dissent in Stenberg v. Carhart, and he has said it before:
However, what Scalia doesn't acknowledge is that the Constitution does not enumerate all rights of American citizens; it defines limits on government. If the Constitution were to enumerate all of our rights, that would be scary: it would be like saying these rights written here and these rights alone are your rights. It would be a model for a fascist mandate. Even if the federal government had the best intentions, many rights wouldn't be covered. For instance, a state or locality that had some grudge against, say chewing gum, could make a law against it with no federal repercussions. How could there be if the Constitution hasn't enumerated a right to chew gum?
The Ninth Amendment is rarely mentioned, but its provision that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" supports the idea that the Constitution is not a document that enumerates specific rights.
Take another example. The state of Illinois passes a law that says people can only sleep for seven hours a night. Guess what? There's no right in the Constitution on sleep. (Well of course not, because the Constitution defines government limits, not individual rights). Still, under the Scalia interpretation, a sleep law is constitutional because there is no right to choose one's own sleeping schedule defined in the Constitution, just as there is no right to abortion because there is no right to privacy in the Constitution.
Strict constructionists like Antonin Scalia have made it seem as if the U.S. Constitution enumerates individual rights. Scalia's opinion is that a right to abortion cannot be found in the constitution, therefore there is none. He says so a couple of times in his dissent in Stenberg v. Carhart, and he has said it before:
It has been arrived at by precisely the process Casey promised–a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not)
If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject,
However, what Scalia doesn't acknowledge is that the Constitution does not enumerate all rights of American citizens; it defines limits on government. If the Constitution were to enumerate all of our rights, that would be scary: it would be like saying these rights written here and these rights alone are your rights. It would be a model for a fascist mandate. Even if the federal government had the best intentions, many rights wouldn't be covered. For instance, a state or locality that had some grudge against, say chewing gum, could make a law against it with no federal repercussions. How could there be if the Constitution hasn't enumerated a right to chew gum?
The Ninth Amendment is rarely mentioned, but its provision that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" supports the idea that the Constitution is not a document that enumerates specific rights.
Take another example. The state of Illinois passes a law that says people can only sleep for seven hours a night. Guess what? There's no right in the Constitution on sleep. (Well of course not, because the Constitution defines government limits, not individual rights). Still, under the Scalia interpretation, a sleep law is constitutional because there is no right to choose one's own sleeping schedule defined in the Constitution, just as there is no right to abortion because there is no right to privacy in the Constitution.
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""The Ninth Amendment is rarely mentioned, but its provision that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" supports the idea that the Constitution is not a document that enumerates specific rights. ""
Who's to say that abortion is one of those rights?
Furthermore, I'd say that this does not prevent the constitution from enumerating specific rights (It does.), but instead merely states that the enumerated rights are not necessarily the 'end' of the rights we're granted.
The right to privacy, for instance -- one can believe in the right to privacy and still disagree with the ruling in Roe V. Wade; the "privacy ends at your neighbor's doorstop" school of thought could similarly apply to what is considered by many to be a separate human being.
That we have some rights to privacy is accepted jurisprudence. That we have an 'unlimited' right to privacy is not.
My thinking on the issue of abortion is not hard and defined at the moment, but the general direction I'm leaning is that of one who is pro-choice but would be comfortable with a reversal of Roe V. Wade.
I might change my mind on this in the future, but most wisdom on the topic tells me that legalized abortion is good public policy -- not a right.