The 50th year anniversary of Griswold v. Connecticut has resulted in various discussions of the case on blogs, including concerning the importance of effectively securing the right by means of insurance and so forth. I have discussed the case here over the years. The case and its principles is a key linchpin in various areas including reproductive liberty, intimate association and general privacy / autonomy. The various aspects of the case and avenues (such as gender equality) largely uncovered by the opinions themselves provide much room for conversation.
Justice Byron White concurred, fitting it into the "liberty" of "to marry, establish a home and bring up children." Parental rights, including of unwed fathers, was reaffirmed by him for the Court this time in a 1972 case. Quoting Justice Frankfurter, he argued that such rights "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." When the Supreme Court protected the right of unmarried individuals to have contraceptives, he decided the question on narrower grounds, but later accepted the point as a matter of precedent. Cf. Justice Scalia who accepted the natural right to raise children, but not as a constitutional right that judges have the duty to protect over legislative denial. Justice Thomas disagreed on that front.
Justice White was wary, however, in applying this overall right in various contexts. The most infamous is his majority opinion in Bowers v. Hardwick ("facetious" to apply it to homosexual conduct; I use the term loosely and a bit warily since it is fairly inexact but their is probably some value in it). The opinion avoided the question of marital sexual freedom and the Court had no clear opportunity to address unmarried sexual conduct, avoiding various controversies in that area. But, he also dissented in a case involving a grandmother and her grandchildren. And, abortion.
But, Justice White goes further, and unlike Justices Rehnquist and Scalia (and somewhat like Justice Thomas, whose support of parental rights can be explained by his originalist views) does so while supporting various types of privacy rights, even in unconventional cases. Also, you wouldn't know it from his dissents, but some beyond the scene accounts of Roe v. Wade suggests he was willing to accept some sort of "health" exception and it very well might have applied to rape (fetal abnormalities? who knows). White concurring in Roe (nothing but life exception) while dissenting in Doe (various exceptions) would have been much more reasonable. And, interesting for that matter.
He and Justice Stevens went at it more substantively in a 1980s case in which White provides a more nuanced argument. As Stevens noted, Justice White is no originalist and recognized that constitutional values beyond bare text are at stake, values for which the particulars (see, e.g., segregation) might change over time. Likewise, though his dissent at times hedged on the scope of his acceptance of precedent, White supported a right to access to contraceptives and related matters. And, if anything (as RBG has noted), he was more supportive of gender equality in some cases. So, what is different about abortion, noting how the facts on the ground there changed over time? Justice White:
White's dissent has various rhetoric popular here involving overreaching courts but again given his philosophy, it is really a question of degree. What is special about a fertilized egg here? Is involuntary servitude generally acceptable to save a life? Is some harm to third parties conclusive on denial of rights such as the right not to donate blood? And, the fact a constitutional "person" is not at stake here is of special importance too, since you have the additional burden of justification of burdening rights of constitutional persons to help non-constitutional persons. Yes, rights can in various usually limited ways be restrained to protect animals or even property. But, would Justice White use bare rational basis scrutiny for a law that severely burdens health and more to protect a dog or tree? This is not about a grandmother needing to move to raise her children together. And, "Justice White" can be a fill-in for various others who accept some degree of privacy rights but draw the line here.
Justice White is correct to note that it is not inherently "religious" to protect human life, but that doesn't save the day. The opposition very well has a sectarian flavor and the question greatly splits religions. He notes it is unfortunate that the anti-abortion laws in effect favor certain beliefs, but given everything else, this underlines why the choice should be left open to the pregnant person. There are constitutional rights here given to the individual, not left to the legislative process that can, if it wanted to, supersede the rights of the individual. This alleged flexibility underlines (as Stevens noted) the interest in prenatal life here need not be deemed course changing. And, why stop at conception? We pass laws to protect the lives of humans before conception too. Likewise, again rights affect third parties. Raising children after all involves children.
The "all or nothing" flavor of his position is not convincing. It would have been more so -- if still open to refutation since a person has rights that trump a Good Samaritan obligation of this nature as well as other concerns such as gender equality -- if he balanced interests. Justice Stevens noted how it makes sense to treat a fertilized egg differently than an embryo, fetus, viable fetus and live child -- the developing entity changes in character. How exactly this balance should run is a great debate but again various "non-arbitrary" reasons can be provided to show how the fundamental right of bodily autonomy etc. covers abortion rights at least early in the pregnancy.
This would require some value choices applied to our constitutional tradition but such is how things go. Disagreement shouldn't warrant this much talking past each other. And, the overall principles found in Griswold should have broad reach, not arbitrarily limited in part because of unfleshed out assumptions that do not withstand scrutiny.
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* Justice White is seen by some as praiseworthy as a pragmatic judge but such a person also from time to time draws lines not "arbitrary" as such but with refutable assumptions, not always clearly spelled out.
For instance, accounts note he rejected Justice Blackmun's original draft opinion in Roe v. Wade arguing that the law in question was "vague." The law in White's opinion was not -- it clearly only allowed abortions for when the life of the woman was at stake. Vagueness did not show up in the final opinion. But, the court below did hold it vague, something flagged by Justice Douglas in another case, one where "health" was given a wide definition in this context. The line between "health" and "life threatening" is arguably vague, especially for a doctor who by nature focuses on "health," not a certain unclear zone of "really serious health."
If White accepted some sort of health exception, where exactly would he draw the line there? Would his line be the same ("no nonarbitrary") in the first week as in the last?
Justice Byron White concurred, fitting it into the "liberty" of "to marry, establish a home and bring up children." Parental rights, including of unwed fathers, was reaffirmed by him for the Court this time in a 1972 case. Quoting Justice Frankfurter, he argued that such rights "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." When the Supreme Court protected the right of unmarried individuals to have contraceptives, he decided the question on narrower grounds, but later accepted the point as a matter of precedent. Cf. Justice Scalia who accepted the natural right to raise children, but not as a constitutional right that judges have the duty to protect over legislative denial. Justice Thomas disagreed on that front.
Justice White was wary, however, in applying this overall right in various contexts. The most infamous is his majority opinion in Bowers v. Hardwick ("facetious" to apply it to homosexual conduct; I use the term loosely and a bit warily since it is fairly inexact but their is probably some value in it). The opinion avoided the question of marital sexual freedom and the Court had no clear opportunity to address unmarried sexual conduct, avoiding various controversies in that area. But, he also dissented in a case involving a grandmother and her grandchildren. And, abortion.
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.Justice Rehnquist had a more limited view of "liberty" and "equal protection" than the others, so his dissent was unsurprising. But, Justice White's brief and rather crude dissent (e.g., what women has an abortion "for no reason at all" unless that is code?), alleging he could "find nothing in the language or history of the Constitution to support the Court's judgment," is something else. There is to the objective eye something of a personal distaste here. It is a conclusionary piece of bare assertion, noting I don't like the word "assertion" when there is actual "arguing" going on. If the scope of opinion and its progeny concerns him, okay; the minutiae and judicial second-guessing involved particularly regarding a range of medical matters is open to some debate. And, you did get a sense this sort of thing influences his vitriol (see also, e.g., The Brethren*).
But, Justice White goes further, and unlike Justices Rehnquist and Scalia (and somewhat like Justice Thomas, whose support of parental rights can be explained by his originalist views) does so while supporting various types of privacy rights, even in unconventional cases. Also, you wouldn't know it from his dissents, but some beyond the scene accounts of Roe v. Wade suggests he was willing to accept some sort of "health" exception and it very well might have applied to rape (fetal abnormalities? who knows). White concurring in Roe (nothing but life exception) while dissenting in Doe (various exceptions) would have been much more reasonable. And, interesting for that matter.
He and Justice Stevens went at it more substantively in a 1980s case in which White provides a more nuanced argument. As Stevens noted, Justice White is no originalist and recognized that constitutional values beyond bare text are at stake, values for which the particulars (see, e.g., segregation) might change over time. Likewise, though his dissent at times hedged on the scope of his acceptance of precedent, White supported a right to access to contraceptives and related matters. And, if anything (as RBG has noted), he was more supportive of gender equality in some cases. So, what is different about abortion, noting how the facts on the ground there changed over time? Justice White:
However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy. [Note expands on this.] Accordingly, the decisions cited by the Court both in Roe and in its opinion today as precedent for the fundamental nature of the liberty to choose abortion do not, even if all are accepted as valid, dictate the Court's classification.Justice Stevens assumes, without discussion, that the only logical reason to treat a fertilized egg differently here is "theological," but on this front Justice White has the better argument. In the Webster decision, Stevens deals a bit more on the religious dispute over this question. Still, there is possibly a secular reason to draw the line there. Stevens is right however to say there are "nonarbitrary" lines to draw all the same -- it's a matter of debate and deciding various matters. He cites, e.g., the long section of Roe v. Wade that discusses history and so forth. The fact that a fertilized egg "bears in its cells all the genetic information" of humans isn't by itself enough here. Justice White in effect begs the question. And, once you change this assumption, his argument that the viability line is arbitrary also loses much force. The right to reproductive liberty continues to have force after fertilization forms "an entity" with human genetic form and continues to some point, however determined.
White's dissent has various rhetoric popular here involving overreaching courts but again given his philosophy, it is really a question of degree. What is special about a fertilized egg here? Is involuntary servitude generally acceptable to save a life? Is some harm to third parties conclusive on denial of rights such as the right not to donate blood? And, the fact a constitutional "person" is not at stake here is of special importance too, since you have the additional burden of justification of burdening rights of constitutional persons to help non-constitutional persons. Yes, rights can in various usually limited ways be restrained to protect animals or even property. But, would Justice White use bare rational basis scrutiny for a law that severely burdens health and more to protect a dog or tree? This is not about a grandmother needing to move to raise her children together. And, "Justice White" can be a fill-in for various others who accept some degree of privacy rights but draw the line here.
Justice White is correct to note that it is not inherently "religious" to protect human life, but that doesn't save the day. The opposition very well has a sectarian flavor and the question greatly splits religions. He notes it is unfortunate that the anti-abortion laws in effect favor certain beliefs, but given everything else, this underlines why the choice should be left open to the pregnant person. There are constitutional rights here given to the individual, not left to the legislative process that can, if it wanted to, supersede the rights of the individual. This alleged flexibility underlines (as Stevens noted) the interest in prenatal life here need not be deemed course changing. And, why stop at conception? We pass laws to protect the lives of humans before conception too. Likewise, again rights affect third parties. Raising children after all involves children.
The "all or nothing" flavor of his position is not convincing. It would have been more so -- if still open to refutation since a person has rights that trump a Good Samaritan obligation of this nature as well as other concerns such as gender equality -- if he balanced interests. Justice Stevens noted how it makes sense to treat a fertilized egg differently than an embryo, fetus, viable fetus and live child -- the developing entity changes in character. How exactly this balance should run is a great debate but again various "non-arbitrary" reasons can be provided to show how the fundamental right of bodily autonomy etc. covers abortion rights at least early in the pregnancy.
This would require some value choices applied to our constitutional tradition but such is how things go. Disagreement shouldn't warrant this much talking past each other. And, the overall principles found in Griswold should have broad reach, not arbitrarily limited in part because of unfleshed out assumptions that do not withstand scrutiny.
---
* Justice White is seen by some as praiseworthy as a pragmatic judge but such a person also from time to time draws lines not "arbitrary" as such but with refutable assumptions, not always clearly spelled out.
For instance, accounts note he rejected Justice Blackmun's original draft opinion in Roe v. Wade arguing that the law in question was "vague." The law in White's opinion was not -- it clearly only allowed abortions for when the life of the woman was at stake. Vagueness did not show up in the final opinion. But, the court below did hold it vague, something flagged by Justice Douglas in another case, one where "health" was given a wide definition in this context. The line between "health" and "life threatening" is arguably vague, especially for a doctor who by nature focuses on "health," not a certain unclear zone of "really serious health."
If White accepted some sort of health exception, where exactly would he draw the line there? Would his line be the same ("no nonarbitrary") in the first week as in the last?
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Thanks for your .02!