August 02, 2005

Coyote on Roe

There's a good piece at Coyote Blog about Roe v. Wade and its position in modern constitutional law. He makes some excellent points about the contradictory (hypocritical) way Roe was decided.

Of course, technically Roe isn't in force any longer. Casey is the reigning caselaw in the matter, and it reworked the standard to be even more confusing. Now not only is abortion jurisprudence an awkward dab of narrowly applied, selectively used liberty, but it's protected under a standard of "undue burden" instead of "strict scrutiny." The difference isn't entirely clear except that, in theory, it's a little looser and allows a few (politically popular) regulations without really reducing access to abortion.

I have to say that I think Roe is a horrible decision because it's nothing more than a cynical attempt to enshrine abortion rights within a framework otherwise hostile to liberty. I think the Ninth Amendment ought to be far stronger in application, literally as strong as the other amendments, and that the privileges and immunities clause needs to be brought up alongside it. But I have to disagree on abortion itself.

Personhood is not bestowed at birth and nothing in the Constitution says so (although it does say birth determines one's state of residence, it does not say birth bestows personhood). Until there's a constitutional amendment denying personhood to those yet unborn, conception - the point at which a human is created - ought to be the point at which personhood rights exist.

But otherwise I agree that unenumerated rights are still rights. The Ninth Amendment was added because the framers believed in an unenumerable liberty. Liberty is anything you have the right to do that doesn't infringe on the rights of others. That comes from Locke's descriptions of natural law and Mill's harm principles. The biggest argument against a bill of rights was that it would suggest that any unlisted rights were somehow not valid or less valid as rights. The Ninth Amendment says that unlisted rights are equally as important as the listed ones. The listed ones are just there establish a basic framework.


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October 26, 2005 3:56 AM  

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