April 26, 2007
JCN Legal Counsel Wendy Long is participating in an on-line Federalist Society debate among legal scholars on the meaning and implications of Gonzales v. Carhart. An exerpt from the debate:
"Disrespect for stare decisis" is an odd objection to a court decision that corrects previous errors and returns a line of jurisprudence to its correct constitutional moorings. If a decision is wrong, then stare decisis is not a compelling reason to pile up more wrong precedents. In addition, the amount of weight to place on stare decisis varies with the effect that the past precedents have had, and how well settled the law and society are as a result of them. It goes without saying that abortion law has been in complete turmoil, and our society is possibly even more divided and unsettled over the issue, than before Roe. Accordingly, Roe and Casey are not candidates for the stare decisis hall of fame. So even if Doug and I are wrong, and Carhart somehow, when the dust settles, appears to have shaved a sliver off of Roe and Casey and Stenberg, it is not the end of the world. Rather, one almost dares to hope it is the beginning of a new era of judicial restraint, and returning in some small way the right to choose abortion policy to the people through the process of representative democracy.
The thing that was a bit startling about the opinions was the attempted re-tooling of the general pro-abortion rationale in Justice Ginsburg's dissent. Roe v. Wade and its progeny have long been a judicial fiat in search of a justification. Prior attempts to posit an abortion right in the fields of privacy and liberty, as the very bright Justice Ginsburg knows, lack intellectual rigor and judicial integrity, as many pro-choice legal scholars have themselves acknowledged. But the Ginsburg dissent is in a way, even less convincing. It might have been an amusing law review article 30 or 40 years ago, but it sounds strangely anachronistic to this female ear in 2007, and frankly, shocking as part of a Supreme Court opinion.
Liberty and equality are in a sense two sides of the same coin, constitutionally speaking: we are free men (I use the term "men" to mean humans; I count myself among such "men") because we are equal under the Constitution, and we are equal because we are all free, in the important respects that our Constitution is able to vindicate those natural human freedoms.
But nothing in the Constitution itself, or any statute or judicial decision, can change the fact that women have babies. Men do not.
It does not detract from female liberty or equality under the Constitution that only women can have babies. The Constitution cannot do anything about it. The hard-core feminist rhetoric that the "right" to have the brains vacuumed out of the skull of one's own baby is the cornerstone of "a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship" is gravely misguided as a matter of law and as a matter of ethics.
The full debate is available at the Federalist Society web page: http://www.fed-soc.org/debates
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