Scrap Roe

I wrote this for the paper. They didn't have room for it, but I couldn't rob my readers of this.

Bush has just nominated a new justice named Samuel Alito, and, as is to be expected, the folks in Washington are falling all over themselves at the news. The democrats are making sure he's not too too pro-life, while the republicans are panicking lest he not be pro-life enough. In an effort to avoid partisan squabbling—or perhaps to agitate those who happen to be wrong—I will now explain why Roe v. Wade is a preposterous decision and needs to be overturned. Moreover, I will do all of this without mentioning God or quoting the Bible. Prepare to be dazzled.

To understand Roe v. Wade, we must look at an earlier case, Griswold v. Connecticut, in which a Connecticut law preventing the sale of contraceptives was found to be unconstitutional. For the record, reading Supreme Court decisions is actually more boring than General Chemistry. Nonetheless, I battled through it to find a couple of quotes to sum up the opinion. Writing for the majority, Justice Goldberg writes:

The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected. Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection.

This landmark decision established a right to marital privacy as found in the “penumbra”—whatever that means—of the constitution. This led the way to the court's decision in Roe v. Wade. Since the court determined a state could not tell a woman she couldn't use a certain product, they could not tell her she couldn't have a certain medial procedure. Somehow though, the sale of certain drugs is still an illegal act and snuff films are likwise forbidden. That whole “my body, my choice” rhetoric only goes so far, at least in respects to the high court.

There are two ways to take this assumed and nonsensical right to privacy, and both lead to disaster. Either the marital right to privacy must be fully extended or this entire supposed right was simply made up. A carte blanche right to privacy will mean a vast restructuring of the current system. From the Patriot Act to the census, from drug laws to the federal income tax code, the government frequently invades our privacy. The big government liberals who subscribe to the pro-choice philosophy may not be so pleased when their favorite programs cannot be funded. The tragedy of applying a principle consistently.

Griswold is assuredly a blow to states' rights—which I am continually told died with the civil war. Many people seem to shrug off states' rights, so long as the court sides with them. What pro-choicers seem to forget, is that a court which can make up a right to privacy to legalize abortion can just as easily make up another right which would make abortion unconstitutional. It is immensely important to set aside any personal feelings concerning contraception and look at the principle that has been cast aside by the court in Griswold. The high court is not appointed to set every silly law right. Justice Stewart dissents admirably, saying

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.

He goes on to mock the other members of the court who over-turned the Connecticut law. In order to conjure up a right to privacy, the court participated in some brilliant legal nonsense, citing no less than six amendments to assert a right that is never mentioned explicitly by name. It seems that if one takes the first amendment times the third amendment, added to the fourteenth, raised to the power of... well, you get the idea. Seeing how the court determines rights by complex mathematical operations, someone better make sure that Alito's algebra skills are up to par.

As silly as it might seem, this is actually the basis for Roe v. Wade. A right to privacy applies when a fetus is to be aborted, but not in regards to the imprisoning of, say, Japanese Americans during WWII. I'm pretty sure the latter is a more appropriate interpretation of the “due process” clause, but then again, in my haste to use reason I did forget to carry the fourth amendment.

When it comes down to it, the reason for all the excitement concerning abortion is simple. The pro-life side thinks—correctly—that the fetus, possessing a beating heart and detectable brain waves, is a human life worthy of the protection we should afford any other person. Obviously one can see why the pro-life side is angry about abortion. Several million murders would get anyone fired up. Even if they disagree, pro-choicers should understand the reason pro-lifers react with such passion.

The pro-choicers feel—wrongly—that the fetus is just a lump of tissue and that women should be able to abort whenever they wish. I have already dismissed the right to privacy which gives rise to a right to an abortion, but there is another reason the government must not interfere with a states' right to restrict, or even abolish, abortion. If there is even a possibility that the fetus is a child, we must react with restraint. The burden of proof is not on the pro-lifers to prove it is a human being, it is on the pro-choice movement to prove it is not. Intellectually honest individuals must grant that point.

In the end, we will contnue to squabble over something that should be a fairly simple issue.
When people let their emotions take hold, rationallity falls to the way side; it is human nature. The constitution was meant as a strict guarantee of what rights the federal government must afford us. When it becomes a living and breathing document—something it was never intended to be—penumbra spring up, giving us rights the founders never willed us to have. For while it may seem liberating to give women the right to choose, the court may one day take an altogether different line.

When the supreme court struck a blow to property rights earlier this year, it was the justices who took a “living breathing” approach who let the ax fall. A court that gives can also take away. It behooves those who support abortion as a legitimate choice to realize that. The choice was given illegitimately, and if we ever get a rational court again, Roe will be scrapped. For we are a rebublic, and the people decide how they must live their lives. Some of the more cautious founders were leery of the president becoming kingly and lording his power over the people. Let us not forget that tyranny from the bench is still tyranny.