Roe Turns 39

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.

-- Roe v. Wade, 1/22/73

The GPS ruling and a discussion of abortion rights on Rachel Maddow last night reminds that a new anniversary of Roe v. Wade has passed, though these days, Citizens United (leading to misguided agreements like this) is the birthday boy of choice.

The main opinion in the GPS opinion noted that "invasion of privacy" is a central concern when determining the presence of unreasonable searches and seizures while Sotomayor noted how the monitoring "chills associational and expressive freedoms." And, as I noted yesterday, Alito's concurrence reflects his respect of privacy rights in various contexts.  There is a clear majority for the sentiment that the "privacy" in question is not merely a matter of direct invasion of a property interest or the "person" of the individual, but something more comprehensive. This is the "right to privacy" Justice Brandeis (and his earlier law article self) was thinking of and the basis of Griswold and Roe.* 

I think Roe largely turns on religious liberty, the question ultimately a matter of conscience.  The two young women involved in arguing the case is a telling example -- Sarah Weddington is a minister's daughter (Methodist) and Linda Coffee (who you hear little about) is a Southern Baptist.  Southern Baptists were more liberal on the question back then, guardedly accepting it as a religious liberty issue, if only supporting abortion in limited cases.  As one discussion notes:

W. Barry Garrett of Baptist Press wrote, “Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision.” Southern Baptist, Linda Coffee, commented, “Legal personhood is separate entirely from a moral or religious view of personhood...the Supreme Court decision does not absolve anyone of individual moral or religious responsibility.”

Rick Santorum can have his faith; just don't push it by law on the rest of us. This is something missed at times -- e.g., that same sex marriage doesn't force people to accept marriage any more than Catholics need not accept second marriages that they deem invalid per their understanding of Jesus' sentiments.  It might appall some that the government does not disallow what you deem sinful, but helps if one remembers that addressing sins by government fiat is not often the best path.  Selectively trusting the government here is a form of religious establishment and the best and more constitutional policy is to leave it to private choice. 

The opening quote, just one of many nuances missed by people who stereotype the opinion as shoddy without apparently reading it, also shows  the balance the right to abortion includes. Many abortion regulations, especially under the Casey loosening of its restrictions, are invalid or ill advised constitutionally and/or as good policy.  Regardless, the opinion does not allow "abortion on demand."  It was an attempt, probably too comprehensive at that point (on that level, Justice Ginsburg's past criticism is valid), to balance privacy rights with state interests such as health and protection of embryonic and fetal life. 

The ultimate balance will be left to debate and changing politics, but the basic ruling remains correct and of fundamental importance.  Basic control of one's body, decisions involving the family (including when to have one), matters of conscience, privacy, ones of particular importance for sexual equality and so forth are all involved, all not applied in an unlimited fashion, but in a balanced and reasonable fashion.  It is not surprising that it is the unreasonable party at the moment that rejects it.

Many attempts are made to weaken it, but the core of the ruling stands all the same.  Rights that are sorta "self-evident" do hold up. 

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* Three liberals joined Alito's somewhat troubling opinion, unnecessarily leaving open too much discretion for the government, but Breyer and Ginsburg at least, and surely Kagan, are clear supporters of a general liberty interest that honors privacy rights. Sotomayor is the most privacy protective justice in this case, providing one of the forceful opinions she has from time to time that makes my side go "yeah." 

Kennedy might have joined Scalia here and in some other limited view of the Fourth Amendment cases, but he does as well.  Alito accepts certain zones of privacy, dissenting alone in a recent denial to take another look at Doe v. Reed, Scalia not thinking much of associative privacy rights there at all. Roberts has accepted that to some extent but not quite so expressly.  Thomas was concerned about associative privacy in Doe and Citizens United, but joined Scalia in calling out Alito for taking for granted privacy rights in a government employment privacy case and has made clear he rejects any general constitutional right to privacy.