Sunday, October 30, 2005

The Intent of the Framers -- Part III -- Roe v Wade and Terri Schiavo

I seem to keep coming back to the following point --- I believe that even a conservative Supreme Court will leave Roe v Wade stand until it can find a way to hold that abortion is illegal as a Constitutional matter. It can then hold that decisions regarding abortions never should have been, and therefore cannot now be, a matter of State law (or to close the circle, a matter of Congressional legislation).

The Supreme Court will never return the jurisprudence on abortion to the legal status of 1970, as if Roe had never happened.

In my analysis, the overturning of Roe would be handled the same way that the Supreme Court tried to in Dred Scott -- by attempting to ensure that the old establshed decision makers (Congress on slavery, and the States on abortion) were not allowed to make new decisions. That is why the two conversations are related. (See Part 2 -- below)

Anyway, the best way for a conservative court to overturn Roe would be to show that the termination of the fetus violates the 14th Amendment rights of the fetus. Since I agree that jurisprudence surrounding the 14th Amendment has always been a complete mess, I don't really think that it would be a long leap for the Supreme Court to state that a fetus is a person under the 14th Amendment, etc. (Although obviously it would be a huge leap politically.)

On that day, I think we will find a lot of the "intent of the Framers" types and the entire "religious right" much more tolerant of finding additional rights in the Constitution. And the folks on the left will feel somewhat differently, too.

Not to open up that old can of worms again, but we had a little sampling of all that earlier this year, when every person in the Bible Belt expected and demanded that the Supreme Court invent what seemed to me to be new fundamental Federal rights for both . Terri Schiavo and her parents.

I am surprised that Terri Schiavo's name did not come up more in the recent stuff on Harriet Miers. Maybe it didn't come up because Harriet Miers was basicially a family dispute amongst conservatives. When the next Supreme Court justice is nominated, Luttig or Alito or McConnell, I hope that Terri Schiavo's name comes up in talking about the fact that judicial activism is always in the eye of the beholder.