The Supreme Court Giveth…

By: Mark Mazer
April 25, 2007

The Supreme Court decided, on April 18th, 2007 in Gonzalez v. Carhart that the federal statute banning partial birth abortions is constitutional. The pro-choice movement is in an uproar. On the Planned Parenthood website, they are issuing a rallying call to their supporters:

"Donate now as Planned Parenthood mobilizes in response to the Supreme Court's reckless decision to uphold the federal abortion ban — a ban that tells women that politicians, not doctors, will make their health care decisions for them."

Outraged Editorials are being published. The North Jersey Herald and News opined:

"… Five Republican-nominated Supreme Court justices formed the majority. (The conservative judges George W. Bush appointed to the Supreme and federal courts will affect public policy for decades.)

"…The ruling will embolden those who will seek new ways to end legal abortion, whether it's through new laws limiting the procedure or old intimidation tactics at hospitals and clinics.

"Those who favor abortion rights must be willing to fight back in the voting booths and on the picket line."

They are all missing the point.

The 1973 landmark decision, Roe v. Wade basically held that a woman has the right to choose whether to complete a pregnancy or to abort it before the fetus is viable. The case uses, as part of its basis, an earlier ruling called Griswald v. Connecticut that defined a "right to privacy." The right to privacy, held the court, is inherent in the first, third, fourth, fifth and ninth amendments. They used the term "penumbra" which means, "An area in which something exists to a lesser or uncertain degree. (www.dictionary.com)." In other words, the court said that the right to privacy is not written in the Constitution but by reading between the lines, we see it there.

Griswold v. Connecticut has been cited frequently, along with Roe v. Wade, as classic examples of "judicial activism." The more common term nowadays is "loose constructionism" which basically means that judges can loosely interpret the Constitution and decide what it means.

The problem with this is simple. If people can decide, in a loose fashion what the Constitution means, they can introduce significant changes. While some of those changes might be seen by some as good, others can be introduced that would be seen as bad.

Griswold, is a classic example of this. By voting that the right to privacy exists, seven people (there were only seven justices then) got to rewrite the Constitution just a little bit. Perhaps in that case it was a good thing. I certainly think that the right to privacy is one that must be protected but I will get to that in a minute. But the bottom line is this: If the Supreme Court can modify the Constitution to suit their view of what it should say, who's to say that the changes they introduce will be good ones?

This is the inherent danger in loose constructionism. You can't have it both ways. It may seem to be a good thing when a judge can decide what the law should be and that decision goes your way. But activism can go both ways and that means activism can result in the creation of a law that goes against you.

History has proven that not all judicial activism has been good. Dredd Scott v. Stanford led to the Civil War while Plessy v. Ferguson ("separate but equal") attempted to limit the freedoms granted by the 14th amendment.

The sad fact is that a right created by the Supreme Court can be taken away by the Supreme Court. Remember, it only takes a majority of the court to decide what the law of the land is. And, just because a decision has been passed down by the Supreme Court in the past does not mean that it will not be overturned later. In fact, it is not that uncommon. Some of the courts most famous decisions overturned prior decisions. For example, Brown v. Board of Education overturned Plessy.

Job looked to God, the benefactor of all the good he had, and respond to losing all that goodness with "The lord giveth and the lord taketh away." Now that the Supreme Court has decided, in a small way, to place a limitation on the right they created, will the pro-choice movement look at the Supreme Court, admit "The Supreme Court giveth and the Supreme Court taketh away?"

Strict constructionism, on the other hand, calls for the text of the Constitution to prevail. This limits what the judges can do to something more manageable. It leaves the power for creating law in the hands of the people's representatives, which is where it should be.

In order to win this battle for privacy and reproductive rights, it has to be fought in the hearts and minds of the American people. They have to convince people that maintaining a woman's right to choose is in everyone's best interest. The battle must be won with 300 million Americans, not 9 black robed people with lifetime appointments who are answerable to no one.

The lack of a codified right to privacy in the Constitution scares me. Am I supposed to rely on 9 people who can never be removed from office to protect a right they created? What's to stop them from overturning Griswold thus opening the door to who-knows-what? Don't forget, privacy goes way beyond the abortion debate. It effects our right to privacy at the Library, the Internet and even in our Doctor's offices. We need an amendment. That's how this has to be done.

It is unfortunate that strict constructionism is identified with the conservative political movement. True strict contructionism is neither liberal nor conservative. It is, to use that quaint phrase, what it is.

This does not mean that judicial activism has not produced some good things. I have already mentioned a few. But we must be prepared to deal with the bad if we are going to give judges the power we do.

Strict Constructionism says no. Deal with the text as it is. If you want to make a change, amend the Constitution.

Rights are inherent in the text of the Constitution, not the opinions of the judges who claim to know what it means.

Editors Note: Mark Mazer can be reached at Mark_Mazer@CapitolOpinions.com