My local paper was glad that a reasonable "compromise" could be found on the Plan B matter, since it was shameful that it was not accepted for general use without a prescription given the clear scientific (as compared to political) realities. This is true enough. I responded to the "compromise" partially with an extended legal analysis, suggesting it violates Carey in particular. This is one way I tend to view things, but surely, the general process was dubious on other grounds. And, I covered some of that as well, again in my own fashion.
Government is set up to protect the rights and well being of its citizens. At least, that is the idea here. This leads to various political debates that affect the liberties of the people at large. Liberty often is secured in this messy fashion, even if it is not always ideal. Rights are not just to be ensured in courts of law, though sometimes it seems members of Congress or the executive department does not quite understand their obligations.
This is again somewhat messy with some real victims, victims we should not just speak of as abstract entities that are necessary parts of republican government. But, it is reality. All the same, there are limits. There are great debates over them, but they are there, and denial of such realities also is troubling. Thus, it annoys me to no end when people basically discuss abortion rights et. al. as fundamental liberties (often with clear constitutional flavor, based on express constitutional demands), but arguing we should leave them to the whims of legislatures.* They do not truly honor this warning:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Justice Jackson's use of "Bill of Rights" should be read broadly, since that very case involved the Fourteenth Amendment. As with most glorious words, they must be put into perspective. We read of "certain subjects." In practice, "one's right to life, liberty, and property" is subject to "vicissitudes of political controversy." But, only up to a point. There are some limits. Political and ultimately open to court correction. And, both can learn a bit from each other.
And, to harken back to a continual theme, our republican government is guaranteed by the "United States." Art. IV. This includes three branches of government as well as the people at large in their character as citizens with a necessary assist from the states, which often are given a bit too much discretion in the area. I do not want my citations of federal court rulings to imply I miss the interlocking nature of the security of our liberties. But, our system does put limits on each, and both as bad politics and breach of the letter and spirit of past court rulings, the treatment of Plan B is shameful.
But, are we led by people who have a sense of shame?
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* I was recently looking over a collection of essays by John Hart Ely Jr., an independent minded constitutional theorist who also sounded (RIP) like a nice guy. Nice sense of humor and self-effacing as well. He also wrote a famous law review article ridiculing Roe, even though he was pro-choice. The collection excerpted his famous anti-Roe law article, famous in part because he is personally pro-choice. Why? Well, basically for reasons that fairly easily can be stated in constitutional language.