Court found privacy, abortion rights in original Bill of Rights

Tue, 02/07/2006 - 5:33pm
By: Letters to the ...

Mr. Hoffman enjoins us to prove to him that a woman has a Constitutional right to an abortion. The simple answer might be “the proof is in the pudding.” However, he rightly points out that the Supreme Court has found itself in error before, citing the Plessy v. Ferguson case which OK’d state laws mandating “separate but equal” facilities and education.

Obviously, proof is as frangible as time and situation, given Plessy’s blatant violation of the 14th Amendment. Even in cases where the Constitution clearly states its intentions, it seems there are exceptions, shaded areas, if you will.

The government of the United States recently held a man for over two years without preferring charges against him. Article 1 Section 9 clearly states: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” I see no rebellion; no invasion; yet the courts have not contravened the President.

The Constitutional “right” of a woman to have an abortion is rooted in the individual’s inferred right to privacy. I am not a lawyer, but I am a student of history, and specifically, of the Constitutional Convention and its follow-on, the Bill of Rights.

By the time the Convention was ready to wrap things up in September of 1787, most of the men had lived through a blistering summer in Philadelphia, conferring in closed session all day with the windows closed. They had accomplished much, had let everyone have their say, and had in their hands a written document to present to the states.

Several of the giants of the Convention made it clear they wouldn’t sign. Most recognized the dangers of leaving with nothing, and the final contention was over a “Bill of Rights” specifically spelling out the areas government could not transgress.

The Virginians who already possessed such a Bill in their Constitution were the prime movers. Others didn’t see the necessity, because such rights were rooted in the common law and needn’t be spelled out.

Another fear was that by placing such rights on paper, they might be opening the door for government to feel capable of transgressing all other rights not mentioned. In the end, they agreed to entertain such a change to the Constitution immediately upon its adoption, which did occur, and thus was born the first 10 amendments, or the Bill of Rights.

To allay some of those fears from the Constitutional Convention, the Ninth Amendment states: “The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

One of the cases cited in Roe v. Wade was the case of Griswold v. Connecticut. This was a case brought against a couple and their doctor for violating a Connecticut law prohibiting birth control or advising people about birth control.

In overturning the law, Justice Douglas spoke of the Bill of Rights having “penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”

He went on to cite the First, Third, Fourth, and Fifth Amendments as containing these privacy “penumbras” with the Ninth Amendment as proof that certain rights, though un-enumerated, were to be retained by the people.

Justices Goldberg and Brennan, concurring, also cited the 14th Amendment: “The Court stated many years ago that the Due Process Clause protects those liberties that are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’”

Roe v. Wade was the case out of Texas that overturned most state laws proscribing abortion, and gave definitive direction to states as to the degree to which they could regulate abortion. Justice Blackmun wrote the court opinion apparently because of his previous work as a lawyer who had defended clinics where abortions had been performed.

He went through a lengthy history of the law and abortion, back all the way to the ancient Greeks, the Hippocratic oath, through the mid-1800s when anti-abortion statutes came into vogue in the United States. His historic review seemed to point to a societal interest at the time of “quickening” or viability. In other words, the fetus was not traditionally considered a person until it could survive outside the womb.

He also admitted a state interest in the child as a person when it was viable, and the reduction in the rights of privacy of the woman as the child comes to term.

So like Freedom of Speech, privacy as regarding pregnancy is not absolute: “We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interest in regulation.”

Justice Blackmun’s decision in Roe v. Wade was certainly in line with viewing the Constitution as a practical, working document as the Founding Fathers envisioned (See Madison-Federalist Papers). Their right to privacy, to a say what happens within their body is preserved to the point at which the state has a compelling interest in protecting the health of the woman, and the life of the viable child.

If Mr. Hoffman has ever bothered to read the entire case, which I doubt, he will no doubt agree with Justice Black dissenting in the Griswold case, that no such guarantee of privacy exists under the Constitution.

The interesting thing is that Justice Stewart joined Justice Black dissenting in Griswold, but then concurred with Justice Blackmun in the majority on Roe v. Wade. Go figure. Somewhere in those eight years, Stewart found the right to privacy in the Constitution.

Echoing Luther in his “Disputatio pro declaratione virtutis indulgentiarum” which questioned the Pope’s right to forgive sins in both this life and the next (for a fee), I challenge Hoffman to prove that Roe v. Wade is incorrect in both its logic and its legal precedent.

The Ninth Amendment says he’s wrong, as does common law and the Supreme Court. I’m not worried about Alito. The view will improve for him when he climbs that mountain.

Timothy J. Parker
Peachtree City, Ga.

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