Reply #22: Right to privacy--is it viable? [View All]

[gottaB]

I'll take the right to privacy as outlined by Blackmun.

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. 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.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The <410 U.S. 113, 154> Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

Roe v. Wade

The first section of the Fourteenth Amendment:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

According to the law as outlined by Blackmun, the right to privacy is not absolute, which is why due process comes into play. It is also the reason why the equal protection clause is relevant. I think even if you were to advance an equal protection argument, you would still need an essential liberty like a right to privacy. Ginsburg's argument, as you've presented it, doesn't fully make sense to me. If you can say that a woman has a right to personal autonomy and equal treatment under the law, at what point does a fetus also enjoy those rights, if not at the point of viability? Why isn't that an issue? Because a fetus isn't yet a born citizen? Well, who knows what science will allow us to do with the concept of naturalization.

Is that something to be feared? You say that "it would be within the realm of possibility for a State to intervene on behalf of the unborn the moment a woman first finds out she is pregnant without violating what remains of the Roe construct." Is that such a bad thing? That doesn't imply a violation of due process, or an endagerment of the health or safety of a woman, or any such. Imagine a morning-after pill that terminated a pregnancy without destroying the embryo. Plop the little nipper in a petrie dish, drop it off at the Ford Clinic on your way to the office, and you're done. Would that be an *unreasonable* restraint on personal liberty? An undue burden?

I happen to agree with much of what Lieberman had to say. He claims he did not say Roe v. Wade needed to be revisited ( see this AP story). I also strongly disagree with Dean's comments, as reported:

Democratic candidate Howard Dean said yesterady that Lieberman's comments indicated he is "very much off base and doesn't understand the science."

"I think Joe makes the mistake that Republicans do, insinuating himself in the doctor-patient relationship," Dean said in an interview with the Associated Press.

But look at Blackmun's decision (Op cit.). He looks at the history of abortion as a medical procedure, consults AMA opinions, and finds that advancements in medical science have made abortion a relatively safe procedure. Would Dr. Dean consider that to be an insinuation? He probably would. Arguably it is. Personally, though, if I had to choose between being governed by laws and be governed by doctors of medicine, I'd choose law.

John Kerry, by contrast, unreservedly supports the right to privacy as articulated by Justice Blackmun. For instance, during the Washington Post/Concord Monitor online Q and A, he was asked about the pba vote (which he missed). Kerry took a strong stand based on protecting our civil rights.

I don't support the President's law because it doesn't allow the exception for situations where the health of the woman is at risk. I believe this is a dangerous effort to undermine a woman's right to choose, which is a constitutional amendment I will always fight to protect.

I believe he meant "constitutional right" and was surely thinking of the Fourteenth Amendment, which guarantees that right.

And think of this. Justice Steven's dissent in Bowers was based on the 14th amendment's Due Process Clause of the Fourteenth Amendment, and that analysis informed Justice Kennedy's opinion in Lawrence v. Texas.

There's a lot more at stake in this debate than a woman's right to abort a fetus. It *is* about the right to privacy, and not being denied personal liberties without due process, and having equal protection under the law.