Some people read the classics over and over again. I have only read a relative few of them, finding some rather hard going (for instance, I tried to read Billy Budd, which sounds like a very interesting story ... couldn't get into it), but this does not mean I don't respect the general concept. Thus, I read and re-read various legal and history related materials that I own or is available online. One can tell, for instance, that I have a particular interesting in privacy rights and so forth. This includes abortion, which I was interested in even in high school, writing a paper on the subject. And, one interesting book on the subject is What Roe v. Wade Should Have Said, a collection of faux judicial opinions using materials available at the time.
One of my usual blog stops has discussed the book in a few posts. An interesting argument made there, and in some of the opinions in the book, is that the state's interest in respecting unborn life is not really shown to be compelling in practice given the overly selective way it is honored. (Justice) Jeffrey Rosen, the New Republic liberal judicial restraint extraordinaire, noted that this is often how things are done. And, I do not know if that standing alone is compelling. But, it does not stand alone -- it goes toward compelling state interest to override fundamental rights of full fledged constitutional persons. Likewise, it does help counter general anti-abortion rhetoric as well.
[The emotional force of which gets tedious pretty quickly. See my latter two comments here. But, both sides sometimes have this tendency, and it is not really surprising given the stakes. A "dissenting" opinion in the book passionately takes the pro-life side, which is appropriate, but simply ahistorical as to constitutional history. See more below.
As to Rosen, his selective reasoning is also tedious. He recognizes that traditionally "privileges and immunities" honored common law rights such as to have a lawful occupation and refuse medical treatment. Nonetheless, he does not face up to the corresponding right to obtain such treatment. Likewise, Rosen mentions 19th Century laws that favored the health of even embryos over the life of constitutional persons, but does not deign to even consider the equal protection problem there.
His suggestion the states were on the road to liberalizing their abortion laws is bad history, and at best, would leave a distinct minority without such reforms. And, recognizing Griswold et. al. were not compelled by precedent only takes one so far -- courts over the years take various paths using precedent, rarely compelled one way or the other in so doing.]
So, we are to allow an arbitrarily enforced invasion of fundamental liberties, why? The argument is not used too much, but is sometimes used for good effect -- so the "life" can be "murdered" when women perform self-abortions (or they are not accessories)? In cases of rape? States generally can allow, if they care to, abortion or (as compared to a case in Ireland a few years back) allow women to openly go out of the state to "murder" people? Or, as the blog often notes, arbitrary procedural restraints that lead to abortions later in the term allegedly for faux "neutral" medical reasons. Thus, a certain sort of abortion procedure is banned, even when clear medical evidence exists that it sometimes is safer, even though abortions themselves still are allowed in such cases.
Comparably, executing an arbitrary number of people, or arresting an arbitrary few committing certain sexual acts have clear ("procedural") due process problems. There are so many ways to attack such problems, but it is useful sometimes to play by the rules spelled out by the opponents. Thus, we need to call on people like "Justice" Amar that cite two cases (Dred Scott/Lochner) as recognizing substantive due process liberties. What misleading b.s. There are a slew of cases, covering areas such as choosing one's one job, travel, raising children, and so forth.* Likewise, he notes no case used the Ninth Amendment to strike down a law; so what? Any number used appeals to general "liberty" interests and so forth that basically are Ninth Amendment claims in different clothing.
Since this is not a pragmatic law opinion or anything, let me go a step further. The argument ad horrendum of citing those two cases simply should not scare people. The claim that there were various basic liberties, not all clearly listed, that the federal government had no power to invade was surely made in federal court opinions before 1857. Taney in fact argued slavery was clearly protected by the words of the Constitution, stretching the bare words of the clauses affecting the institution. All the same, even Abraham Lincoln and the Republican Party argued that the federal government had no power to ban slavery in the states. Justice Campbell thus even made a Ninth/Tenth Amendment argument in his concurring opinion.
The idea that in some fashion, apart from state law, an American citizen had the right to own a slave therefore was not really a radical statement to make. Unfortunately, it was deemed rather uncontroversial, even by those who clearly admitted slavery was evil. Thus, it took war powers and the Thirteenth Amendment to truly end slavery, West Virginia and Maryland agreeing to do so themselves before then. [The loyal border state of Delaware had few slaves and the more slave rich Kentucky hung on to the end.] One problem was that Congress did have power to ban slavery in the territories. Likewise, the idea that in some fashion we have the fundamental right to contract with others should not be deemed controversial. The problem with Lochner is that there were compelling state interests, especially when regulating public businesses, that the Court did not properly take into consideration.
Sometimes, for various reasons, one wishes not to face controversial problems head on. All the same, it is useful to do so, especially when we discover it can help us promote our causes in the process. Anyway, it often provides an interesting thought experiment and/or discussion in the process. But, again, surely there are many ways to attack a problem, including explaining why something is wrong or right.
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* This goes toward how abortion rights fits in with broad fundamental liberties and judicial precedents overall. An interesting opinion by Jed Rubenfeld, for instance, cited Dent v. West Virginia (also mentioned in the book I discussed yesterday, coincidentally), which honors the right to choose an occupation as basic to republican liberty. He further notes that this logically means one can choose whether or not to be a mother. The opinion by the way allowed licensing of doctors, thus also reaffirmed the idea that medical procedures like abortion can be regulated for health reasons.
Rubenfeld interestingly goes out of his way to oppose simply rejecting laws on "moral" grounds, finding the majority in Lawrence v. Texas ill-advised. I would suggest that sure the Constitution furthers certain moral principles, but leaves others to individuals. This includes basically religious questions such as the meaning of life. Thus, I have said the quotation of Justice Stevens on the point in Lawrence is a bit misleading.
James Fleming in his Constitutional Stupidities, Constitutional Tragedies essay [the authors of the collections have worked together before, and some contributors were involved in both] also uses similar "right to privacy" reasoning to good effect.