Thursday, November 03, 2005

Utilitarianism and the overturning of Roe

In a post about Samuel Alito and the chairman of the Senate Judiciary Committee, Kevin Drum writes:
Arlen Specter said…he's looked at Samuel Alito's dissent in Casey and doesn't think it indicates that Alito would vote to overturn Roe v. Wade. That's fine, I suppose, but it doesn't really matter much. After all, Specter's personal interpretation of Alito's opinions is just that: his personal interpretation.
I think Kevin is basically correct here. I sense that Specter, the Republican champion of abortion rights, is not eager to fight his own party on the Alito nomination, and is eager to grasp at any evidence a Justice Alito would support Roe. I suspect, however (and indeed I hope) that nothing of the sort is true. A Justice Alito, after all, will not be bound by Supreme Court precedent the way a Judge Alito currently is. At any rate, one commenter on the thread opined that:
Unless one finds extremely great weight on the proposition that a fetus, even of a few cells, is a person, with all the rights attendant thereto, the right to privacy wins, hands down.
Well, undoubtedly plenty of people are of the opinion that the right to an abortion (not the same thing as the right to privacy, by the way) may win "hands down". But one need not think that a fetus is a human person in order to believe that the government ought to restrict the procedure. One might argue, for instance, that, say, the desirability of promoting population replenishment warrants restriction of abortion. Mind you I'm not arguing that the government should ban abortion to boost the birth rate. But if a sufficient number of voters hold this opinion, and is able to get such a policy enacted, what's to stop them if the courts should allow it? The right to privacy is not absolute, after all.

Now, one might not deem such a policy just, or fair, or wise, but others might disagree. What I'm trying to get at is: should the people, acting through their representatives, find utilitarian reasons for wanting to restrict abortion, why should the non-absolute right to privacy automatically override the people's wishes? Why does the right to an abortion win "hands down" in a democracy that has chosen lawmakers and judges who don't hold this view?

Logically, one's answer cannot be: because privacy is a constitutional right; because even if this is the case, privacy is clearly not an absolute right. The right to privacy is subject to limitations just like all the others. The constitution, for instance, allows the government to stop me from converting my home-grown poppies into opium for personal use. But if I don't wish to sell the opium, and I wish only to allow it to enter my own body through the bloodstream, why doesn't the constitution afford me this activity as a part of my right to privacy?

What is evident is that, although the US constitution may well confirm the fact that a person possesses a right to privacy, it is definitely not clear from the constitution where this right begins and ends, and what, if any, restrictions and limitations the government may or may not impose on this right. For that we need the fine-tuning provided by the legislative branch.

I believe someday in the near future we'll look back on the judiciary's temporary ownership of the issue of abortion with a degree of puzzlement as to its complete lack of wisdom in going anywhere near the management and guardianship of a political controversy for which it is so utterly ill-suited.

1 Comments:

At 11:58 AM, Anonymous Anonymous said...

The constitution, for instance, allows the government to stop me from converting my home-grown poppies into opium for personal use. But if I don't wish to sell the opium, and I wish only to allow it to enter my own body through the bloodstream, why doesn't the constitution afford me this activity as a part of my right to privacy?

The difference is that the people, acting through democratically-elected government, have determined that drugs are bad for you. You're quite right that the right to privacy (and to bodily autonomy) isn't absolute: the government can prevent you from harming yourself. There's never been a recognized right to suicide, for instance. If you were to try and starve yourself to death, and your friends and family noticed this and called 911, you can be sure the government would force feed you with tubes in a hospital setting, and no judge would tell them to stop.

Abortion by contrast not only doesn't harm the pregnant woman, but is actually much safer in the first trimester than carrying on with the pregnancy. Pregnany and childbirth carry signfificant health risk. Women sometimes die from complications. So, if a court were to allow a lawmaking body to outlaw abortion, it would be allowing said body to deny women the right to protect themselves from a potentially deadly health risk.

 

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