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Wednesday, February 01, 2006 

A Matter of Taste

This is what happens when people who know nothing about Constitutional law opine about it.

Although the Supreme Court decided to delay the ruling when it came up a week ago, it will come up again. All I can hope for is the justices to interpret the constitution in the correct way and maybe I can get the outcome I want. But what I hope for the most is the fact that taste needs to stop being legislated.

When I read this, I was reminded of a portion of Justice Scalia's dissent in Planned Parenthood v Casey. He said...
I must, however, respond to a few of the more outrageous arguments in today's opinion, which it is beyond human nature to leave unanswered.
I feel compelled to respond, because it is a viewpoint like this that has perverted the role of the federal courts. It is a viewpoint like this that has turned confirmation hearings into circuses. It is a viewpoint like this that has perverted the judicial branch into a grotesque super-legislature. It is a viewpoint like this that has taken a political issue out of the hands of the people, dressed it up as a Constitutional right, and now turned it into a "matter of taste" even above the democratic process.

Abortion jurisprudence has poisoned our federal judiciary. Until this issue is purged from the courts and put back into the hands of the public, every Supreme Court confirmation hearing will be about Roe and little else.

Calling abortion a matter of taste is absurd. The weakness of that argument is apparent in the post itself. Take a look...
Gay marriage is one thing that in my opinion is the legislation of taste. If there really were to be a Constitutional amendment that outlawed gay marriage across the country, that'’s legislating taste. This could be a whole new post if I wanted it to be, but I'’ll leave it at this. Gay marriage isn't a threat to the American family. A threat is drugs, child abuse and neglect, and bad parenting.
So legislating drug use isn't a matter of taste? I think it is. We allow tobacco smoking, but not marijuana smoking. We allow alcohol consumption, but not peyote. What about "bad parenting"? How do we legislate that "threat to the American family"? What right do you have to tell me that my parenting is bad? I thought we weren't legislating matters of taste. Some contemporary issues are matters of taste. However, it is wrong to cherry pick the issues that are matters of taste based on your personal preferred outcome. Abortion, specifically Roe v Wade, is not a matter of taste. It is not for me and not for anyone who takes Constitutional law seriously.

Let's take a look at this post...
I'm done talking about Alito. I'’m done talking about the Supreme Court. What it comes down to now is legislation. The Supreme Court has done a pretty good job in the past of not letting ideologies get in the way of decisions. This is of course, to the best of my knowledge.
Please take some time to research the Warren Court and much of the Burger Court and the Hughes Court post-1937 and the Supreme Court in general before you make such a statement. A minimal amount of research will prove otherwise.

The issue now is the people supporting the overturn of Roe vs. Wade. The courts decisions and interpretation of the Constitution is very complicated. Why is it now that at every turn when we don't agree with something, we want it outlawed? Some want to outlaw abortion, some want to outlaw assisted suicide drugs, and so on. There are several issues in which people with strong opinions want things outlawed. Now everyone is entitled to their opinions that these things are bad, but how are they SO bad that they have to be outlawed. It seems more and more now that we are legislating taste.
Overturning Roe does not outlaw abortion. The general public needs to be made aware of that. Overturning Roe sends the issue back to the legislatures of the country. Debate and legislation will follow. Overturning Roe isn't about taste. It has a lot to do with the fact that no one ever thought that there was a right to an abortion in the Constitution until Justice Blackmun and company "found" one. That is the legal problem with the decision. The Court took a non-justiciable question away from the people of this country and away from the democratic process. They decided to take a policy question, an ethical question, and a philosophical question and answer it for the nation.

Not everyone was happy about it at the time either. Here is what Justice White said in his Roe dissent...
I find nothing in the language or history of the Constitution to support the Court's judgment... The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
That is an example of the criticism of Roe. A majority of the Supreme Court crafted their preferred policy for the entire nation, enshrined it as a Constitutional protection, and shut off democratic debate over the issue.

Here is Justice Scalia in his dissent in Ohio v Akron Center for Reproductive Health...
The Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution - not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins. Leaving this matter to the political process is not only legally correct, it is pragmatically so. That alone - and not lawyerly dissection of federal judicial precedents - can produce compromises satisfying a sufficient mass of the electorate that this deeply felt issue will cease distorting the remainder of our democratic process. The Court should end its disruptive intrusion into this field as soon as possible.
Again, it is a right that has no basis in the text of the Constitution. It is a right that was never recognized in the text of the Constitution for almost 200 years. It is a fabrication created by a majority of the Court to meet their desired policy goals.

How about the opinion of an academic who agreed with the end result of Roe? Legal scholar and Yale law professor John Hart Ely said that Roe...
is not constitutional law and gives almost no sense of an obligation to try to be.
The case was decided based on the "taste" of the seven member majority of the Supreme Court. I guess they get to legislate taste though, as long as they couch it in the language of a judicial opinion.

This is what Judge Michael McConnell has to say about Roe...
The reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously, even to many scholars who heartily support the outcome of the case.
He goes on in detail...
Far from resolving the thorny question of when a fetus is another person deserving of protection--surely the crux of the privacy right, if it exists--the justices determined that the issue is unresolvable. They noted that there has been a "wide divergence of thinking" regarding the "most sensitive and difficult question" of "when life begins." They stated that "[w]hen those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary . . . is not in a position to speculate as to the answer."

According to the court, the existence of this uncertainty meant that the state's asserted interest in protecting unborn life could not be deemed "compelling." But this leaves us with an entirely circular argument. The supposed lack of consensus about when life begins is important because when state interests are uncertain they cannot be "compelling"; and a compelling state interest is required before the state can limit a constitutional right. But the constitutional right in question ("privacy") only exists if the activity in question does not abridge the rights of a nonconsenting third party--the very question the court says cannot be resolved. If it cannot be resolved, there is no way to determine whether abortion is a "right of privacy."
He attacks the Court's reasoning further...
...the court's claim that it was not resolving the issue of "when life begins" was disingenuous. In our system, all people are entitled to protection from killing and other forms of private violence. The court can deny such protection to fetuses only if it presupposes they are not persons.
Justice Blackmun belabored the point that the Court was not deciding if a fetus was a person. Unfortunately, their ruling did just that. By rejecting the coverage of the Equal Protection clause of the 14th Amendment to fetuses, the Court effectively ruled that fetuses were not people. McConnell continues...
It is true, of course, that people honestly disagree about the question of when life begins. But divergence of opinion is not ordinarily a reason to take a decision away from the people and their elected representatives. One of the functions of democratic government is to provide a forum for debating and ultimately resolving controversial issues. Judges cannot properly strike down the acts of the political branches that do not clearly violate the Constitution. If no one knows when life begins, the courts have no basis for saying the legislature's answer is wrong. To be sure, abortion is an explosive issue, with noisy and self-righteous advocates on both sides. But the Supreme Court made it far more so by eliminating the possibility of reasoned legislative deliberation and prudent compromise.
I can go on and on, citing more and more criticism of Roe. Many scholars have spent many years poking many holes in that decision. My problem with Roe is a legal one. It is not a matter of taste. It is a matter of intellectual honesty. There are people on both sides of the issue who care only about the results. They don't care whether or not the Court is acting properly; they only care if the Court rules in their favor. We as a nation must reject this view of the judiciary. We must reject result oriented jurisprudence. The courts should stay out of these areas where the Constitution is unclear. "Rights" should not be inserted into the Constitution where the text is silent on the issue.

If you believe that abortion on demand should be available, persuade your fellow citizens and legislate accordingly. If you believe that abortion should be banned, persuade your fellow citizens and legislate accordingly. If you believe that some abortions should be allowed and some should be restricted, persuade your fellow citizens and legislate accordingly. This is an issue that cannot be resolved in the courts. It must be debated fully and fairly.

Until we abandon this type of jurisprudence, many of the important policy decisions in this country will be settled by an unelected judicial oligarchy. The issue of abortion and the issue of when human life begins is an issue which the entire country needs to have an honest and open discussion about in the very near future. It is an issue that no nine judges, regardless of the supremacy of their court, should decide for an entire nation.

"Until this issue is purged from the courts and put back into the hands of the public, every Supreme Court confirmation hearing will be about Roe and little else."

Great point. Very informative post.


If people like Joe Biden want to know why the confirmation hearing system is broken, he doesn't have to look any further than Roe.

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