Tuesday, October 18, 2005

Griswold: more than abortion at stake

Arlen Specter (whose wife Joan makes quite tastey desserts - as wimmen should - despite committing the grievous sin of getting edumacated to work as a lawyer and holding public office herself) has caused a little uproar among conservative Christians and the WH. It seems as though the usually meticulous Specter had a discussion with constitutional law neophyte and Dubya supreme nominee Harriet Miers in which the two discussed the Supreme Court's Griswold v Connecticut ruling. According to initial statements by Specter, Miers said that she felt the 1965 case was rightly decided. The White House pitched a hissy and Miers called Specter to tell him that he must have misunderstood her because she had yet to take any position on Griswold or the right to privacy.

It seems odd to me that anyone with any knowledge of constitutional law would not have formulated an opinion on Griswold, especially someone who was and adult at the time of the decisions and/or went to law school during or after the case was under review. But then again, Harriet Miers is no student of the constitition and, according to the Preznit, her astute understanding of and adherence to fundamentalist scripture was a deciding factor in her nomination, not her grasp of constitutional law.

While the right to privacy was clearly established by the ruling, it was based on various amendments to the constitution and bolstered by the Ninth Amendment language stating [emphasis mine]
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
This ruling is not only the legal underpining for the ruling in Roe v Wade, which legalized abortion (with limitations, despite what the religious right would have you believe) and establishes the right to access contraception to utilize birth control methods not approved by the Vatican, it also establishes the right of [consenting] adults to determine with whom they are willing to engage in sexual activity, what that activity will entail and with whom they care to share that information (or not). Estelle Griswold sued the state of Connecticut because the state had enacted laws that prevented even married couples from legally obtaining accurate information about contraception or possessing (and ostensibly using) any method of contraception except withdrawal and "Natural Family Planning".

Despite the focus on sex, birth control and abortion that invariably become the focus of any discussion of the case, the right to privacy goes well beyond sexual politics and delves into other medical and personal issues. There is no way to obtain informed consent if the government proscribes providing factual information that could have any impact on actions.

The dissenting opinion of Griswold by Justices Potter and Black was based on what they claimed was a fear of diverging from the actual text of the constitution, but is really far from a literal take on the verbiage. Based on their interpretation, 4th amendment protection against unreasonable search and seizure, would depend on what the government considers "unreasonable". If laws are passed to ban contraception and/or abortion - it could be considered reasonable to search/examine someone believed to be engaging in sexual activity without getting pregnant to determine if they are practicing birth control; women who miscarry could endure police investigations to ensure they have not really induced an abortion - we could go to any degree of Ceacescuan bodily invasion because it's now reasonable to do so to enforce laws regarding procreation (and there is probable cause when a sexually active female not practicing birth control does not get pregnant or has what someone deems to be a "suspicious" miscarriage). The fourth amendment allows us not only to be secure within the privacy of our houses, but the text literally gives us a security (privacy) in our persons.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
To be even more of a literalist, the ninth amendment specifically references that not all rights are specifically delineated in the constitutional language itself and the delegation of those rights. As written, it must be taken into consideration along with the 4th amendment. The literal reading of the language contained therein states that the fact that some rights are specifically delineated in the constitution does not deny the existence of other rights of the people. The dissenting opinion states
The Ninth Amendment ... [was intended] to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States.
In the last 4 words of the statement Black and Potter deviate from the actual text of the amendment by adding their own. If we are to stick to a literal reading of the constitution the ninth amendment clearly states those rights are retained by the people they are not deferred from federal government to the states. In other words, the constitution most certainly does protect an individual's right to privacy and Griswold was rightly decided.

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