I once read on this board (but can’t find the thread) that the right-to-privacy angle taken in the Roe v Wade case was one of two (if not more) possible legal angles that could have been used to make abortion legal.
What were the other legal angles? (and why weren’t they used?)
Just to add there is no ‘right to privacy’ in The Constitution.
Sure there is. The Supreme Court of the United States says there is. Please don’t post incorrect information in GQ.
What you may be refering to is that the “Right to Privacy” is upheld by the IX Amendment as an unenumerated right (the Appelate Court took this view) or the XIVth Amendment as SCOTUS did.
You can say it. That don’t make it true.
Polerius, there were indeed a few schools of thought on the Right to Privacy, the existence of which was largely but not universally accepted by the members of the Supreme Court by the time Roe was decided.
There’s the “substantive due process” grounds on which Roe is based – the 14th Amendment guarantees that no state government shall deprive any person of life, liberty or property without “due process of law.” Read narrowly, “due process” means that you can’t deprive someone of L/L/P without giving them a trial of some appropriate kind, a/k/a “procedural due process.” However, the court in Roe also read the guarantee of due process to prohibit state laws that impinge on some “fundamental right” or are so strange they are not consonant with our views of “ordered liberty.” This is called substantive due process, because it is the substance of the improper law, not its procedural terms, that offends the 14th Amendment.
This is the basis on wihich Roe was essentially decided. One of the problems with substantive due process is the determination of what rights are so fundamental they are protected by the 14th Amendment. Of course, this engenders constant arguing in the Court about whether a given right is protected or not. (Or at least it used to before Scalia, Thomas, and the late Chief made their dislike for substantive due process so well known that no one makes those arguments to the Court anymore if they can possibly avoid it.)
The main other view, which was rejected in Roe, was that an implicit Right to Privacy already existed in the Bill of Rights in the “penumbras” of the other rights enumerated there. That is, the First Amendment prohibits excessive government interference in private association, the 2d prohibits excessive gov’t interference in keeping weapons, the 3d in managing your home, the 4th in your personal effects, and the 8th in your liberty. Takes all together, this shows that the Founders were deeply concerned about government interference in private affairs. You add with the the 9th Amenemdment (which states that there are other rights which are not enumerated in the Constitution, but which still exist), and there’s an excellent argument that all these guarantees create a “zone of privacy” that the government cannot penetrate at leisure.
This penumbra theory has some positive aspects – it’s narrower, specifically protecting privacy, and it’s therefore much less subject to the whims of whoever happens to be sitting on the Court when a particular case comes up. (It also has the benefit of letting you stop pretending that the word process somehow means substance, which is the opposite of process.)
There were also a kind of truncated/hybrid view, which forgot the idea of penumbras and simply said that the guarantee of implicit rights in the 9th Amendment incorporated some understanding of fundamental fairness there, instead of the due process clause of the 14th Amendment, but in my view this line of reasoning is kind of a worst of both worlds approach.
Anyway, a very confusing but quite detailed sketch of the whole debate (with lots of cites and footnotes) can be found in the Supreme Court’s decision in Griswold v. Connecticut, 381 U.S. 479 (1965), where the justices subscribing to each view try to hash it out. As it turns out (in my opinion unfortunately), while the Court’s opinion in Griswold embraces the penumbral view, Roe rejects it for the substantive due process/14th A. rubric.
–Cliffy
And I can post the entire Constitution and you will NOT find it.
Wow this is a reply I would expect from a police state. I know you are well read, and the Constitution is NOT written in legalease, but is quite understandable by the common folks. The correct GQ answer is it’s not there.
The danger is that people think it’s there, in writing, and don’t press for a amendment. W/o such a protection it can be taken away in an instant.
A constitution is a legal text and as such has to be interpreted. And since a legal text can be interpreted in a variety of different ways, someone has to have the competence of giving the decisive, conclusive and binding interpretation. For the US, this competence is with the federal Supreme Court. If this Court construes the US Constitution to include a right of privacy, then it is the law of the land that there IS the right of privacy in the constitution, even if it’s not explicitly mentioned.