Posted on 11/21/2005 1:58:09 PM PST by JTN
When the confirmation hearings for Supreme Court nominee Samuel Alito begin in January, much of the debate will focus on the issue of abortion.
Alito has been nominated to replace Sandra Day O'Connor, one of the six justices who reliably voted to uphold Roe v. Wade. It's unfortunate that abortion will dominate so much of the discussion about Alito. It's unlikely that a case offering the opportunity to undo Roe will come before the Supreme Court any time soon, and even if it should, Alito's confirmation would put the unofficial Supreme Court abortion scorecard at 5-4, enough to keep Roe intact. The abortion debate obscures more pressing issues far more likely to come before the Court.
Nevertheless, because abortion will be front and center, I'd like to offer an approach to the issue that will probably elicit reservations on both sides of the debate, but one I think is fair, grounded in the reality of contemporary politics and, most importantly, loyal to the Constitution.
First, my biases: I'm a pro-life libertarian. I believe in wide leeway for and tolerance of personal freedom, but I also believe that a fetus has some rights that the state is obligated to protect.
(Excerpt) Read more at foxnews.com ...
The plain text of the Constitution makes it clear that abortion is a state issue.
Roe v. Wade has nothing to do with abortion, in one sense. It has to do with who gets to decide.
So many people today forget that the States are sovereign - it isn't just the voters and the federal government.
What will keep future courts from just creating another ROE v WADE scenario?
I've really been curious about this. Any thoughts?
Federalist solution ping!
Hopefully you wouldn't have a future court with such poor judgment (I understand there are many pro-choicers embarassed by the decision), although there is always that risk. Perhaps a Constitutional amendment. Of course, I already thought that the Constitution was reasonably clear on the subject.
I'm not sure what you are getting at. Abortion used to be a state issue until Roe. In order to revert back to that status, SCOTUS would have to overturn Roe.
So in the context you state, it's moot, because the last thing the liberals want is abortion to revert back to being a state issue - or for just about any other federally-usurped power to revert back as well.
It is the penumbra which needs aborting.
Wow. Federalism. What a novel idea. Why hasn't anyone thought of it before? /s
If there is a "Right to Life", it is surely a fundamental right and therefore guaranteed by the U.S. Constitution.
Whats next ... A constitutional right to be happy ?
So what you are saying is that instead of one opinion we should seek 50, and then so doing those 50 have several opinions within their judicial structure, so now we have a virtual cornucopia of opinion stalling the process while more and more children die. Leave it in the Supreme Court, it appears that we who value life may be getting a new voice.
[b]nor shall any person...be deprived of life, liberty, or property, without due process of law[/b]
Seems sort of like a right to me. Not necessarily inalienable, but a right nonetheless.
"What will keep future courts from just creating another ROE v WADE scenario?"
Us, making sure to elect presidents who will nominate justices who will heed the Constitution.
A Republic, if we can keep it...
Under the Common Law in which the Constitution is interpreted, a fetus in the first semester has no status whatsoever, and has limited status as the chattel of the woman in the second semester. Therefore, the "Right to Life" clause has no applicability to the unborn under any strict legal interpretation.
There are very good legal reasons for the evolution of these conventions in precedent over thousands of years, and the unintended consequences of changing it dramatically for legal precedent would be very ugly -- few proponents of changing it appear to have thought through the broader legal consequences. Legally and technically, the Federal government should have no interest in the abortion issue. Therefore, it should fall to the States to decide. As a practical legal matter, deviating from the current Common Law conventions would be disasterous and would have many legal side-effects unrelated to abortion that most abortion proponents would be adamantly against. This is the real problem: legal systems have to be as consistent as possible across the broadest spectrum of cases they can manage, allowing that there will be edge and "hard" cases where consistent application will produce less than desirable results on occasion. The current common law conventions evolved to produce the maximum legal good for the maximum number of people for the majority of cases; it is not that alternatives have not been tried, but that they have been tried in the past and overturned as being bad ideas in practice for too many cases.
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