Tuesday, November 15, 2005

It's Official: Alito doesn't like abortion and has said the Constitution doesn't protect abortion rights for women. I think we all knew this would be the case, but now we have evidence to back it up.

Oh sure, he's disavowing that comment. But it's pretty ridiculous that he would try to do such a thing. It's one thing to abstain from answering questions about future cases, but there's no reason to deny you have feelings about past cases. It is perfectly acceptable to ask how a nominee would vote on a case that has already been decided.

But I think we all assumed Bush would appoint an anti-Roe judge, which brings us to the conservative legal argument against abortion rights. Namely: It's not in the Constitution.

I've heard numerous conservatives rant about how the Supreme Court legislated from the bench with Roe v. Wade. They say that the Court invented a right that's not listed anywhere in the Constitution. To which I say, read the Ninth Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Now, conservatives have heard this argument before, although they don't seem to buy it. While they don't go so far as to totally dismiss that amendment as Bork did by calling it an "ink blot", they will argue the other extreme by saying that I'm essentially calling for anarchy via the Ninth Amendment.

No, that's not what I'm doing. There are many constitutional laws that can limit Americans conduct and behavior. But the Ninth Amendment makes it explicitly clear that just because something is not listed in the Constitution doesn't mean that it's not a protected right.

The next argument conservatives often raise is that the Ninth Amendment only protects rights that were already codified by state statutes and English common law. It's the originalist defense that the principles of the Constitution have not changed since its drafting.

While I take issue with that premise, I can entertain it in this case because abortion was perfectly legal in 1789. All the states allowed women to terminate their pregnancies until the point of "quickening" -- which refers to the moment that the mother can feel the fetus move inside her, and that usually occurs sometime during the second trimester. But women often knew they were pregnant well before that (when they ceased menstruation) and sometimes sought to terminate the pregnancy early, which doctors would do. It wasn't until the late 1800s that all American states outlawed abortion.

Another argument conservatives use is that the Ninth Amendment applies only to the federal government, and therefore states can regulate abortion as they see fit. They maintain that overturning Roe v. Wade would not automatically outlaw abortion, but that each state can decide for itself via its elected legislature.

That's true, except that the 14th Amendment extends the Bill of Rights to the states. Under the 14th Amendment, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." With that amendment, anything that the federal government is prohibited from doing, the states are prohibited from doing. (I am well aware of the Slaughterhouse Cases, and will gladly debate the fundamental flaws with that reasoning and the further mistake by the Supreme Court when it transferred the guts of the "privileges or immunities" clause to a new creation called "substantive due process". But we cans save that for another time.)

That brings us back to the original question: Is the right to an abortion a liberty protected under the Constitution? I say yes, given that reproductive rights seem to be fundamental to the principles of keeping the government from interfering with people's privacy, so long as people's conduct don't infringe on the rights of others. And because a fetus has little to no brain function early in the pregnancy, its termination should not be considered taking a life, but rather preventing a life from forming.

That's just my opinion, and conservatives are welcome to disagree. But the disagreement must be based on something other than mentioning that abortion is not listed in the Constitution. The Ninth Amendment doesn't say we can't have a debate about abortion. It just says you have to use a different argument.