The fact Gov. Palin could not think of another Supreme Court ruling that she disagreed with other than Roe, especially since [h/t Keith Olbermann] she did just that after the Supremes decided the Exxon punitive damages case involving Alaska, is troubling. As a conservative sort, I assume she opposes various rulings, and could have even just cited subject matter. But, her comments as to abortion in particular does not really warrant the level of spleen some supply.
The latter, a blog I overall appreciate, finds the ruling in Roe "inescapable" after Griswold. This, honestly, is a reflection of a rather limited imagination. I am in no way convinced Justice Harlan would have decided Roe the same way; for instance, his Poe dissent argued that the rarity of such strict "use" laws made Connecticut clearly in the wrong. There were many anti-abortion laws overruled by Roe and Doe. Likewise, the idea of "right to privacy" compels Roe v. Wade is true enough, if you do the heavy-lifting, but it existed in various forms long before liberalized abortion laws.*
Gov. Palin can support one and not the other as much as you can support the freedom of speech while opposing certain forms. This leads to an abridged view of liberty, which is problematic, but rather common really. There always tends to be some exceptions to broad liberties, something even fairly liberal sorts find acceptable. Rights aren't absolute, states have discretion, but we cannot take this too far. We also are not always firmly logically consistent, lines drawn for various reasons, which also applies here. You can hold that the Constitution does not compel anti-abortion laws of Palin's sort while still saying individual states should be allowed to enforce them. Again, liberal parallels can be supplied.
The Lawyers, Guns and Money blog, cited above, is a strong supporter of abortion rights, and also firmly dismissive of much anti-abortion sentiment ... with cause, e.g., those who push come to shove simply do not honestly show their interests in the "right to life" of embryos and fetuses to be that compelling. The sorts that would support token punishments, and often not even for the pregnant girl or woman involved. All the same, the person who leads this effort at LGM lays it on too thick. Justice White was not simply idiotic to hold that the right to choose an abortion is not "fundamental." LGM cites Stevens' rejoinder, but I'm not aware of an extended quote of White's reply. Here's a key footnote:
That the abortion decision, like the decisions protected in Griswold, Eisenstadt, and Carey, concerns childbearing (or, more generally, family life) in no sense necessitates a holding that the liberty to choose abortion is "fundamental." That the decision involves the destruction of the fetus renders it different in kind from the decision not to conceive in the first place. This difference does not go merely to the weight of the state interest in regulating abortion; it affects as well the characterization of the liberty interest itself. For if the liberty to make certain decisions with respect to contraception without governmental constraint is "fundamental," it is not only because those decisions are "serious" and "important" to the individual, see ante at 776 (STEVENS, J., concurring), but also because some value of privacy or individual autonomy that is somehow implicit in the scheme of ordered liberties established by the Constitution supports a judgment that such decisions are none of government's business. The same cannot be said where, as here, the individual is not "isolated in her privacy."
My point can be illustrated by drawing on a related area in which fundamental liberty interests have been found: childrearing. The Court's decisions in Moore v. East Cleveland, Pierce v. Society of Sisters, and Meyer v. Nebraska, can be read for the proposition that parents have a fundamental liberty to make decisions with respect to the upbringing of their children. But no one would suggest that this fundamental liberty extends to assaults committed upon children by their parents. It is not the case that parents have a fundamental liberty to engage in such activities, and that the State may intrude to prevent them only because it has a compelling interest in the wellbeing of children; rather, such activities, by their very nature, should be viewed as outside the scope of the fundamental liberty interest.
I think you can refute this, but it tends to take a bit more work than some supply. The "judgment" involved in developing a "fundamental right" is a complex bundle of things, and White argues that the right to privacy involves things that are none of the state's business. Thus, if there is a special thing that clearly is (let's say), such as potential life, it is not just a case of a right overridden by a compelling government interest. It is a case of a right not in place at all. Some might not look at things this way, but it might be workable in some fashion.
[It's hard though. What is totally private? School choice is an aspect of privacy; it affects others, obviously, right? It seems more logical to say that parents have the right to discipline their children -- which most think can include mild spanking -- but countervailing interests can come into play. Or, the right has a "within reason" quality inherent in it.]
The best response to this is that it is not shown that conception fits the bill. It is not deemed as such a unique event that the right of privacy in this context disappears. In fact, as Stevens suggests, it is considered a complicated matter of conscience to determine the weight of the "life" involved and whether or not (and when) it is appropriate to abort the embryo or fetus in question. At least, in the first few months of pregnancy. IOW, White is wrong in his reasoning, not his premise as such, though I admit both have problems.
Anyway, the right to choose an abortion is an important aspect of the right to privacy. You won't get me to dispute that point. But, it does require a bit of work to connect the two, and it does us no favor to suggest otherwise. Anyway, McCain also (I assume) thinks there is a right to privacy, but that states should have the right to ban abortion in most cases. Focus on the principal, not his agent.
[To toss something in, Sen. Biden was sure to note during the debate that he does not support the right to same sex marriage. It annoys that the matter of ensuring equal benefits for same sex couples -- repeatedly agreed to by the Democrats and it seems acceptable to the McCain side in some fashion -- is not pressed upon. Such lack of proper follow-up questions, however, is sadly common.
Anyway, how about DOMA? It is not just about marriage, but equal federal benefits, and state power! Also, why exactly is same sex marriage a problem? Why have all those equal rights for same sex couples? Anyway, does this mean one or both sides think civil unions are necessary to equal rights? Surely, various state constitutional ballot measures etc. blocks that result.]
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* The dissents in Olmstead v. U.S. promoted a liberal reading of constitutional provisions, honoring the spirit of the document, and even used "penumbras" in the promotion of privacy. Justice Holmes:
While I do not deny it, I am not prepared to say that the penumbra of the Fourth and Fifth Amendments covers the defendant, although I fully agree that Courts are apt to err by sticking too closely to the words of a law where those words import a policy that goes beyond them.
Justice Douglas:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy.
And, if you play follow the cite, we learn of a principle that "governmental action which, although not directly suppressing [a protected liberty], nevertheless carries this consequence" is still unconstitutional. Such rulings also show a "right to privacy" did not arise in the mid-1960s. Griswold cited something that already was secured.