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Politics : Politics for Pros- moderated

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To: Ilaine who wrote (100448)	2/14/2005 7:02:52 PM
From: TimF	Read Replies (1) of 793776

Perhaps I should have picked a different example because picking the one I did gives the danger of this becoming a debate about abortion rather than a debate about judicial activism but so far that danger has not been realized. They did not expressly call any right "privacy" but they certainly discussed the right to be left alone from excessive government interference. The belief in "the right to be left alone from excessive government interference" is pretty close to what is now commonly called libertarianism. While I am a libertarian I don't think that we have a constitutional right to expect a government that strongly follows libertarian principles. It's a misnomer to say that Roe v. Wade created a "right to abortion." It found the right to not be prosecuted by the state for obtaining an abortion or performing an abortion during early pregnancy. That's the real crux of Roe v. Wade -- can the state prosecute someone for obtaining an early abortion? Or do women have a right to be left alone to make their own decision during early pregnancy? "Right to an abortion" is indeed less accurate than "the right to not be prosecuted by the state for obtaining an abortion or performing an abortion", but it is not a misnomer. Usually I would use the more accurate term but it is rather long for a term that comes up frequently. Also note I did not include "early pregnancy" as part of what I called the "more accurate term" since judicial decisions have not limited this right to early pregnancy. "The right to not be prosecuted by the state for obtaining an abortion or performing an abortion" is also not contained in the constitution, nor is privacy. Also "privacy" does not equal "the right to not be prosecuted by the state for obtaining an abortion or performing an abortion". The "right to be left alone" is often a good principle, but it isn't specified by the constitution, it would be unworkable as actual constitutional law, and I imagine it is something that you would not impose as a general requirement in all areas. Or do women have a right to be left alone to make their own decision during early pregnancy? The Founding Fathers would have said yes, because that was, in fact, the state of the law at the time the Constitution was enacted. Abortion prior to quickening (15 - 20 weeks gestation) was not illegal in any of the British colonies or in the states prior to about 1860. The conclusion does not logically follow from the premise. The unstated premises, which would be something like "If abortion was legal at the time of the writing of the constitution, than the founders would have considered abortion to be a basic right that should be protected by the constitution", and "If the founders considered abortion to be such a right but did not express anything about it in the constitution than it is still a constitutional right", are both highly questionable to say the least. Tim

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