Dada is the sun, Dada is the egg. Dada is the Police of the Police.

11/06/2005

Don't believe the hype; Roe is good constitutional law

Whenever the Supreme Court becomes a hot topic of discussion in Blogland and among the punditocracy, you inevitably hear people saying things like "legal scholars of all stripes agree that the Roe opinion is poor constitutional law." I haven't taken a poll of legal scholars "of all stripes," but I can tell you that the idea that Roe is undeniably "bad law" is utter bullshit. (This is not to say that there is nothing wrong with Roe - there is, but what Roe gets wrong, it gets wrong not because it goes too far in protecting abortion rights, but because it doesn't go far enough. But that's a topic for another day.) When people criticize Roe, they usually do so on the grounds that the Constitution simply does not guarantee the right to an abortion. They are wrong.

In Roe, the Supreme Court found (among other things) that the criminalization of abortion violated the 'Due Process Clause' of the Fourteenth Amendment, which says:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.
So no state is allowed to pass laws that infringe upon individual liberties - unless the due process condition is met. This means that one's liberty can only be violated if the state has a legitimate reason to do so. In the absence of a "compelling state interest," as the Roe decision put it, any law that constitutes a significant interference with a person's basic liberty is unconstitutional.

Abortion bans undeniably limit the liberty of pregnant women; even those who support such laws must acknowledge this. The right to control what happens to one's own body is fundamental (though not absolute). If a state is going to be permitted by the Due Process Clause to outlaw abortion, it will have to have a "compelling interest".

This means that the burden of proof is on those who oppose Roe to identify just what this compelling state interest is that justifies the violation of liberty that abortion prohibitions entail. So far, they haven't done this. (Appeasing the fetus fetish crowd by catering to their bizarre superstitions doesn't count.)

Instead, they misdirect the discussion: "If the constitution says nothing even remotely related to abortion, [a law against abortion] is not unconstitutional." Sorry, no. The Constitution doesn't have to say anything about abortion. It says something about liberty - namely, that it cannot be violated without a good reason. If you want to infringe on someone's liberty, you have to demonstrate that you are justified in doing so. If you can't do the latter, you can't do the former - the Constitution says so.

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