Saturday, May 06, 2006

What Bob Casey Doesn't Get is that Choice is NOT about Abortion

Choice is not about abstinence, contraception, education, rape, promiscuity, terminating pregnancy, irresponsibility, or any of those things. Choice isn't even a "woman's issue".

Choice is a privacy issue, it is an issue of personal liberty, it is a fundamental rights issue.

The decision in Roe v Wade was predicated on the legal determination that there exists in the Constitution a personal privacy or liberty interest which is not expressly stated. The legal issues are explained at the beginning of the Court's opinion:

The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring).

Nowhere in the Constitution is there a statement about a personal right of privacy. Before Roe, the Court had found not a broad, general right of privacy, but a series of discrete instances in which privacy rights "trumped" governmental prerogative. When they found them they called them "fundamental" and said that they were "implicit" in the Constitution as necessarily a part of the "concept of ordered liberty".

Where the State runs up against a "fundamental" right -- explicit or implicitly protected in the Constitution -- the State has the burden of demonstrating some important state interests are at stake. Not only does the State need to show an important state interest, but it then needs to demonstrate that the regulation at issue is narrowly tailored to serve that interest and that it doesn't infringe on the fundamental right at issue more than is minimally necessary to satisfy the state interest at stake.

This is why the state can require mandatory immunizations and can require children to attend schools, for example.

It isn't necessary to go into all the back and forth in Roe on the legal issues of the State interest at stake and the degree of regulation appropriate.

For the purpose of this discussion, my point is that if we, as a Party, refuse to acknowledge Roe as settled and inviolate law, then we must necessarily be rejecting the fundamental personal privacy right to make decisions relating to our own bodies on which the Roe holding was based.

THAT right is not only a woman's, but all of ours. And this is why I think the Democratic Party needs, must, inviolately stand for Roe and choice. It should be one of our core values and we should be embarrassed to endorse someone like Casey who is dedicated to overturning Roe and criminalizing a person's exercise of their personal privacy interest.

Even if you are against abortion, you should be for choice because it's your damned liberty interest at stake, too.

THAT's just another reason why I am not voting for Casey on May 16 and supporting Chuck Pennacchio.


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