Sorry to resurrect a 5-day-dead topic, but the legality issue (more than the morality issue) really interests me. I'm kicking myself for not logging on sooner.
I originally just assumed that Roe v Wade was surely legal, and that those on "the right" were just bullshiting because they didn't get what they wanted, as they so often do. But then I actually looked into it, and saw it was based on pretty shaky ground, at best. Finally, however, I decided that the reasons for it, although complicated and shaky at first glance, actually are valid.
I'm in the awkward position of being pro-choice but anti-Roe v. Wade. It is my shameful secret that I often don't let out often. I hate to be in agreement with the right that it was legislation from the bench, but it was legislation from the bench.
The right to privacy isn't asserted much except when justices have had a social and legislative agenda.
Whats more private then a woman having control over her own reproductive processes? The choice to take psychedelics or not. The choice to take psychiatric meds or not. Actually all medical decisions are close to on par with the privacy factor of women' reproductive decisions but no special protections have been carved out to folks who with choosing alternative therapies or wanting an absolute bypass of public health issues.
Its given the impression that an elite unelected body can pull the plug on the democratic process as it sees fit. I'm no expert on jurisprudence by any means but Roe v. Wade was imo pulled out of the justices asses to accommodate a social agenda. By my estimation a worthy social agenda, but legislation from the bench is abhorrent to me even when I agree with the end goal.
Similarly I think court decisions affirming gay marriage in jurisdictions where the majority are opposed are Pyrrhic victories.
The most common argument I've gotten about this is that the Supreme Court didn't have an agenda. They only decide where they have standing. They had standing when the case reached them. The court rejects many cases every year, what cases they here is a matter of their agenda. The assertion of a right to counsel in state cases was made over and over but never made it to Supreme Court hearing until the court had decided it was a topic whose time had come.
I do think that rules and conditions about late term abortions are a very different issue and the pro-choice forces that try to lump everything together as a single, one size fits all issue are guilty of an extra layer of self deception. Perceiving a 7 month pregnancy as different than a first trimester pregnancy is not about oppressing women. It is a recognition that there is indeed a big difference.
I find several damning problems with an original meaning or strict texualist approach to the constitution, one that would (attempt to) eliminate the possibility of Justices legislating their opinions, or at least view that as wrong. First, and most convincing to me, is that by this reasoning we would have very, very, very few rights, and all sorts of important ones could be limited in unacceptable ways. For example, Brown v Board of Education would not be valid. All of the freedoms protected by the Bill of Rights could be completely abridged by state law. Griswold v Connecticut would not hold (States could criminalize the use of any form of contraceptives by married persons).
Second, the text of the constitution is often very ambiguous. There is no way to just look at the words and "figure out" what the objective legal meaning of them is. So what option do the justices have? They can flip a coin, or try to establish (via their personal opinion) what interpretation seems to fit within the "gist" of the rest of the constitution. The third option is they can interject their own opinion in a way that goes against what the "gist" of the rest of the Constitution is (and pull it out of their asses). I think that many (most?) cases that are controversial which people accuse of being cases of legislating from the bench, are actually the second case; although I concede that of course the third case takes place as well, as Justices are flawed human beings like anyone else.
Third, there is the matter of relevance. The constitution is a document over 200 years old. To hold it to be some sort of legal Bible whose perfect wisdom cannot be questioned or violated, strikes me as naive. There are all sorts of freedoms and situations unique to modern times that the framers could not have anticipated, so realistically, one must concede that the judges must "interpret" the freedoms that it protects, by creating "new" freedoms, not mentioned, that go along the same lines as the old ones.
I think the liberty to have an abortion is of the sort that the bill of rights intends to protect; that the sort of freedom an individual is entitled to as is implicit in the bill of rights would include the freedom to have an abortion, just as it would include the freedom to not be racially segregated. Furthermore, I think that the 14th amendment does indeed extend such liberties to the State level (although through the privileges and immunities clause rather than the due process clause).
The fact that 9 unelected officials have so much power seems quite wrong, but unfortunately that's the way our government was set up, and I think they have acted within their legal bounds in Roe v Wade. Thinking that the constitution protects rights not explicitly mentioned is just as much of an agenda as thinking the constitution only protects rights it specifically mentions; you can't avoid interjecting your opinion in how the constitution ought to be interpreted.
I agree that if a person has any sort of constitutional freedom to have an abortion, then they would also have a constitutional freedom to use psychedelics. But rather than thinking that neither is a constitutional freedom and Roe is wrong, I think that both are a freedom and most of our drug laws are unconstitutional.
I also agree that the decision may have hurt things in the long run, even though I think it was legally and morally the right decision. I think it played a significant role in the elections of Reagan, Bush Sr, and Bush Jr, and I think its plausible that they caused far more harm than would have been caused by allowing states to outlaw abortion.
EDIT: left out the word "against"
