Monday, July 25, 2005

Even liberal guys can dismay me

At least those of them that seem to take such issue with Roe v. Wade. I say this because some of the guys who post on a progressive site that I contribute to as well seem to think Roe is screwing up the Democratic party. First of all, Roe still is broadly supported. According to polls such as this one, it is supported by a majority--two-thirds--of Americans. This has been a consistent finding.

So to progressive men against Roe: it's not Roe that's keeping Democrats out of office what's keeping us out of office is not having the cajones--pardon my French..err Spanish--to stand up for what we believe, on workers rights, on health care, on foreign policy, on education. We don't talk about what we believe, and that's what's getting us. Roe is the least of our worries in this regard.

Furthermore, Roe is not a blatantly bad legal decision or even a mediocre one, as some allege, at least not its fundamental holding. The argument often made against Roe is that there is no fundamental right to abortion, and that the matter should be sent back to states for legislating. However, opponents of Roe seem to avoid or take little issue with the point that any law made against abortion (or against anything for that matter) must pass a burden of Constitutionality, i.e. not violating fundamental rights. Thus, even if a law is popular, it can be unconstitutional, and there should be a valid state interest behind the law.

Roe holds that a right to privacy is protected under the Constitution. Justice Blackmun in the 1973 opinion explains it thusly,
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
And cites precedent:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right [lists amendments].
These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454; id. at 460, 463-465 [p153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.
Despite acknowledging the possible presence of a state interest in Roe, the opinion goes on to explain why, this interest is outweighed by the personal interest of a woman considering an abortion:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Let's remember, we live in a country where laws--which are in essence restrictions on rights--cannot just be made for the heck of it. There must be a reason, and that reason must be good enough to withstand the test of whether the law impinges on Constitutionally protected rights.

Therefore, the idea of making laws against abortion or other reproductive rights may not seem grave to some. However, the decision of Roe brings up the importance of a need to weigh state interest against individual rights, and, in my opinion, sufficiently explains the importance in this case of protecting the right. This is where a personal appeal comes in: if it is you, your sister, girlfriend, or so forth who one day may have to face an unintended pregnancy, or a pregnancy that is causing health problems, that individual's interest is much greater than the state's, don't you think?

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