Photo: Chief Justice Roberts and Justice Alito issue a joint opinion.
(This will also be cross-posted over at The Edge of the American West. Many thanks to Ari and Eric for inviting me to post over there from the other edge of the American west!)
Legions of the holy will be marching today in Washington, D. C. to mourn the 35th anniversary of Roe v. Wade, the Supreme Court decision that legalized abortions in the first trimester of pregnancy, and restricted the rights of states to regulate later-term abortions. One of the claims of the forced pregnancy gang that Historiann has never understood is the claim that “there’s no such thing as a right to privacy in the Constitution.” This dubious suggestion always seems to rest on an overly literal reading of “Constitution” (curiously, some people don’t include amendments and case law, but of course the Constitution is the sum total of the Constitution of 1789, its 27 amendments, and Supreme Court case law over the past 228 years), and on an overly literal reading of “privacy,” which (like “God” and “unitary executive”) is a word not found in the text of the Constitution or its amendments.
You don’t have to take my word for it. From the 1965 ruling in Griswold v. Connecticut until last April in Gonzales v. Carhart, the Supreme Court affirmed and elaborated on its theory of the right to privacy in the Fourteenth, Fourth, and Ninth Amendments in signal cases like Roe, and again in Casey v. Planned Parenthood (1992), and again in Stenberg v. Carhart (2000). Tips for toads: the Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects,” without probable cause and a warrant. (Even a lay reader could infer that a uterus might be included in “persons” whose bodies are protected by said amendment.) And let’s not forget the Ninth–which specifically states “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Fourteenth Amendment, of course, has that little “equal protection of the laws” thingy.
But in Gonzales in 2007, “Our Gang” on the Roberts court summarily overturned forty-two years of consensus on privacy and sexuality. Justice Anthony Kennedy writing for the court majority decided that the certainty of women’s personhood and constitutional rights were nothing compared to the possibility that a woman who had a late-term abortion might regret it in the future. Because apparently, late-term abortions are recreational fun for the ladies until Sex and the City: The Movie comes out. Does it sound to you like Kennedy doesn’t have any familiarity with women outside of bad nineteenth-century novels? His ruling reads like the scene in The Forty Year Old Virgin when Steve Carell’s character says a women’s breast feels like a bag of sand. At least the other men in the movie recognized that Steve Carell’s character had said something very weird. In Kennedy’s opinion, four other male justices just nodded and “Our Gang” signed right on to an opinion as full of prejudice, bad history, and wishful thinking as Dred Scott v. Sandford.
I have every confidence that Kennedy’s Gonzales opinion will, within a generation, be a laughingstock. But that won’t help the many girls and women whose health and lives will be threatened in the next several years by his capricious folly. As
Darla Justice Ruth Bader Ginsburg wrote in her dissenting opinion, “this way of thinking reflects ancient notions of women’s place in the family and under the Constitution – ideas that have long since been discredited.” Ahh, Darla–you just might have to start your own club.
UPDATE: Ann Bartow and the other hardworking contributors over at Feminist Law Professors remind us that it’s Blog for Choice Day–there are still a few hours left, so blog while you still can! And Johnny Law can’t do nothing about it.