"A.J. Rose" (Jonathan) (ajrose93) wrote,
"A.J. Rose" (Jonathan)

Privacy and Roe


A post on z111's page reminds me that not everyone is as ancient as Yr. Obdt. Srvt., hence some may have trouble seeing the connection between Roe v. Wade and "the right to privacy." I already replied there, but I'm crossposting it here for the curious. :)

93 93/93 -- AJ


Oh, boy! Law talk! ;)

Here's the thing: to end the chaos of a fifty-state abortion policy, the US Supreme Court decided in 1973 to impose a single federal standard. How to do it?

As it happened, they'd already done something similar in a case called Griswold, which I believe was about contraception. This involved, IIRC, expanding a non-specific "right to privacy" they'd located in the "penumbras"* of enumerated rights. This was in a sense nothing new: the privilege not to testify against a spouse in court was based on a similar "penumbral" argument: that is, "For (a) to work (in this case the sanctity of marriage), (b) must be implied (whether allowing spouses to be silent, or governmental non-intrusion into contraception matters)." So the Roe argument amounts to: "Remember that right to privacy, and to contraception as a private matter, we 'found' earlier? We think it extends to abortion, too."

It was universally recognized at the time as a really tenuous basis for the granting of any posited "constitutional right"...though most commentators at the time were so happy to have the issue "settled" (hah!) that it looked, for a while there, as though there were universal relief. Later, of course, it became the model case of "judicial activism": "We hereby find, in our previously located right to privacy, a similar right to have an abortion, but only in the first trimester"...all of which sounds a heck of a lot more like legislation than judicial activity. Then again, it settled the debate nationwide without requiring Congress to vote...so folks figured.

The backlash was so serious that when the next such case came up, also in 1973 -- "what constitutes pornography?" (okay, "obscenity") -- the Court decided against a federal standard, and left it up to "local community standards." But anyway, that's how it came to pass that Roe depends specifically on a theoretical "constitutional right to privacy," hence the questions to Roberts. HTH!

-- Elderly Former-Paralegal & Law Student AJ :D

* Penumbras, if memory serves, are the fainter shadows on the edges of shadows; anyway, implying here a right invisibly included in a previous, also invisible, right (abortion within privacy, though neither is mentioned in the Constitution).

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