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Tuesday, May 03, 2005

What-if's about Roe

My husband (Hoosier Gadfly) and I have been discussing what would happen if the Supreme Court, with one or more new members, overturns Roe v. Wade. He spins a scenario where the Court has somehow come to have a majority of originalists, who locate privacy/procreative rights in the 14th Amendment’s “privileges and immunities” clause. In this scenario, Roe’s legal framework would fall, rather than its ultimate result, and state abortion law would remain constrained by federal principles. I find it hard to get excited about anything as unlikely (short-term) as a definitely originalist majority. I’m also not holding my breath for a revival of the Privileges and Immunities clause, unreasonable as its early demise may have been. I come up with a few key questions:

--If Roe fell, would the whole of substantive due process fall with it?

--Roe hung the right of privacy indecisively on either of two pegs, Fourteenth Amendment substantive due process or the Ninth Amendment (though Justice Blackmun’s concluding summary mentions only the Fourteenth). Might the Court abandon the former while preserving or strengthening the latter? I find it hard to come up with a majority for a more vital Ninth, but who knows what new blood could accomplish.

--Is it at all likely that the Court will swing all the way to finding fetuses to be “persons” protected by the Fourteenth?

Personally, I’m afraid of what Roe may drag down with it. A parent’s right to raise his/her child without undue government interference is currently protected under substantive due process, that paradoxical ol’ phrase. If substantive due process is condemned, that’s a right that’ll be wandering the streets looking for a home. Justice Scalia, in his Troxel v. Granville dissent, agreed that such a fundamental right existed and was included in Ninth Amendment unenumerated rights, but declared that the courts had no authority to enforce such rights. (I’m bound to blog about Troxel v. Granville at some point….)

I’ll turn into a pumpkin in approximately 18 minutes, so that’s all for tonight. One more note: I am not at all sure that the Court will overturn Roe even if a Justice joins it who thinks Roe was a bad idea. It would require a certain revolutionary love of upheaval to open that box.

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