Feeds: 
symbol identifies content for paid subscribers only.
YOU HAVE A RIGHT TO PRIVACY, IT JUST DOESN'T GUARANTEE YOU A RIGHT TO PRIVACY.
Katie Couric may understand that a right to privacy is "the cornerstone" of Roe v. Wade, but since Sarah Palin's answer that she believes there is an "inherent" right to privacy in the Constitution, Ramesh Ponnuru moved the goalposts.Palin, meanwhile, is asked a somewhat oddly phrased question by Couric, and says, reasonably enough, that the Constitution protects a right to privacy. Now it is certainly and obviously true that the Constitution protects privacy: What else do the Third and Fourth Amendments protect, for example? There is nothing incompatible with either a pro-life point of view or originalism with saying that the Constitution protects privacy.Well actually I agree with Ponnoru there is a right to privacy. Except I'm not an originalist, first because I don't have a Ouija Board that allows me to communicate with the ghosts of the founding fathers, and second because originalism holds that liberals "invented" the right to privacy to protect a constitutional right to abortion. Originalism, according to Antonin Scalia, means what "the words mean to the people who ratified the Bill of Rights or who ratified the Constitution."
While I sympathize with Ponnoru's conclusion that the Constitution protects privacy (as do many liberal legal scholars) the Constitution doesn't explicitly mention a right to privacy, which is why originalists say it doesn't exist. Since the founding father's didn't write it in explicitly, that must mean they didn't mean for it to be there. If you conclude that there IS right to privacy in the Constitution, the legal argument against abortion changes entirely.
In my view, if there's a constitutional right to privacy, you can't take away someone's right to have an abortion, anymore than you can take away someone's right to bear arms. That said, conservatives have been trying to work around the "right to privacy" for some time now. Kathryn Jean Lopez posted a letter noting that Alito and Roberts both said they believed in a "right to privacy." Clarence Thomas' opinion in Sternberg v. Carhart reveals why this isn't inconsistent with a right to privacy, according to conservatives:
Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on one’s view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so.So even if the Constitution protects a right to privacy, that doesn't mean you have a right to privacy if you're a woman who wants to have an abortion, because abortion is a "unique act." You might just conclude that opposition to abortion has absolutely nothing to do with originalism at all. Which is why, I suppose, conservatives don't have a problem with Palin stating a non-originalist point of view on abortion, since the important thing is that she's opposed to abortion, not that she understands the legal reasoning behind opposing it.
--A. Serwer
COMMENTS (9)
It is much more simple than all that. Only men have a right to privacy. Women's bodies are owned by their fathers first and then their husbands. If neither of these are available to control her, the state must step in.
Posted by: ohcomeonhussein | October 2, 2008 9:41 AM
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment of the U.S. Constitution
I think the ninth amendment blows all originalist's arguments out of the water.
Posted by: Phil Philiben | October 2, 2008 9:44 AM
Ponnuru added, "What else would you expect from Katie Couric? As a member of 'The Media,' she's therefore also a member of 'The Party of Death'."
Posted by: ed | October 2, 2008 9:47 AM
You post is all well and good but only speaks to the converted. It does absolutely nothing to address any pro-life beliefs. Pro-life advocates view abortion as a competing rights issue between two separate people. From a pro-life point of view, you have argued that an absolute right to privacy of individual A grants individual A the right to kill individual B. More generally a Paylin can believe in an absolute constitutional right to privacy and still believe that the government has the authority to prevent abortions.
Posted by: James | October 2, 2008 10:14 AM
What James said.
Posted by: captcrisis | October 2, 2008 11:14 AM
Neither Palin nor Couric really understand what lawyers mean by a "right to privacy" and how that plays into the abortion debate.
Take 6 months out of your life to learn how to read and brief cases, and then you may even begin to understand, that you don't understand anything about the law.
Posted by: Anonymous Frustrated Lawyer | October 2, 2008 11:20 AM
I can't find anything in the Constitution that grants "personhood" to corporations. Does that mean the Originalists are going to overturn laws that grant those rights to corporations?
Posted by: Linda | October 2, 2008 11:42 AM
"In my view, if there's a constitutional right to privacy, you can't take away someone's right to have an abortion, anymore than you can take away someone's right to bear arms."
What about laws against prositution and surrogate mothers who are willing to be paid to carry other persons' babies to term?
If the right of privacy encompasses a woman's right to abortion, wouldn't a law that prohibits her from earning a living with her body also violate her right of privacy?
Posted by: Chicounsel | October 2, 2008 11:53 AM
"Fundamental right" is a term of art in Supreme Court cases. I believe the formulation is that a "compelling state interest" may be permitted to override a fundamental right. The argument would be that protecting a human being, the fetus, is a compelling state interest that is more important than even the woman's fundamental privacy right to make decisions about her own body.
What I've never been able to get around, however, is the fact that when a fetus becomes a full human being is a belief adhered to by certain religions -- but not by many others, including non-believers in any institutional religion. How can the state come down on the side of saying the fetus as of conception is a full human being without favoring one set of religious beliefs over the other? How can a compelling state interest be created by violating the Constitutional principle against establishment of religion?
Posted by: urban legend | October 2, 2008 2:49 PM