Roe v. Wade: 35 Years Ago Today

35 years ago, women did not have a constitutional right to control their bodies. That changed when Roe v. Wade was decided. It is fashionable today in legal circles to attack the legal reasoning of Roe. While I believe Justice Blackmun's prose could have been better, the central legal premise was and remains sound:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, . . . ; in the Fourth and Fifth Amendments . . . ; in the penumbras of the Bill of Rights . . . ; in the Ninth Amendment, . . . .; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment . . . . These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," . . . , are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, . . . ; procreation, . . . ; contraception, . . . .; family relationships, . . . ; and child rearing and education, . . . This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. . . .
35 years ago today, an important step was taken in recogizing the equality of women and in recognizing the right to privacy. Fighting to preserve this advance has been central to progressives and Democrats since then. The challenge remains. Roe now probably stands with a precarious 5-4 majority in the Supreme Court. There is no more important issue in this Presidential campaign than the appointment of Supreme Court justices. John Paul Stevens is 87. Justices Ginsburg, Breyer and Souter are 68 and older. We MUST elect a Democrat. Nothing is more important in this election.

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    Well-stated. Thank you. (none / 0) (#1)
    by oculus on Tue Jan 22, 2008 at 11:19:52 AM EST
    Too bad the Dem. Presidential primary candidates believe this is too controversial to discuss.

    Explicit Privacy Amendment? (none / 0) (#2)
    by Ben Masel on Tue Jan 22, 2008 at 11:44:13 AM EST
    When I was first reading your stuff at dkos, you used to call for a broader Right to Privacy to be a Dem fundamental value, with a drive towards a Constitutional Amendment. Other than Tester and myself, I can't think of any '06 Candidates making this a theme, and it's droppewd from your writing. Given up, or lost interest?  

    I'm still of the thought that enacyting such an amendment to a couple mjore State Constitutions is the  route to a federal one.

    I am not in favor of an amendment (5.00 / 1) (#5)
    by Big Tent Democrat on Tue Jan 22, 2008 at 12:07:15 PM EST
    It puts into play whether the right exists

    How much does it now exist (none / 0) (#8)
    by Ben Masel on Tue Jan 22, 2008 at 12:15:39 PM EST
    after all the salami slices from the 4th?

    Do you also oppose State level Amendments?


    We need a new Court (5.00 / 1) (#11)
    by Big Tent Democrat on Tue Jan 22, 2008 at 12:29:30 PM EST
    to reinterpet the 4th.

    For a couple years (none / 0) (#12)
    by Ben Masel on Tue Jan 22, 2008 at 12:54:24 PM EST
    befiore the WTC attack, the Court's conservatives were moving back towards a meaningful 4th Amendment (Kyllo). I've a hunch that they'll resume that trend with a Dem Administration doing the prying.

    A stronger interpretation of the 4th doesn't address the corporate  side privacy invasions, and current jurisprudence gives the Govt carte blanche in acquiring the fruit as 3d party business records, even when the corp has collected the data under Govt. mandate, ie cellphone location records.


    Changed you mind, or (none / 0) (#9)
    by Ben Masel on Tue Jan 22, 2008 at 12:22:14 PM EST
    is my memory going?

    Always been my position (none / 0) (#10)
    by Big Tent Democrat on Tue Jan 22, 2008 at 12:28:54 PM EST
    Sounds interesting (none / 0) (#3)
    by andgarden on Tue Jan 22, 2008 at 11:46:37 AM EST
    I thought BTD had taken an interest in "progressive originalism" recently.

    My favorite subject (none / 0) (#6)
    by Big Tent Democrat on Tue Jan 22, 2008 at 12:08:13 PM EST
    Except for me and Jack Balkin, not too much interest anywhere else.

    I think it's attractive (none / 0) (#7)
    by andgarden on Tue Jan 22, 2008 at 12:11:44 PM EST
    because it acts as a kind of a mindf#@k for the conservative "original intent" people.

    IMO (none / 0) (#4)
    by athyrio on Tue Jan 22, 2008 at 11:52:11 AM EST
    I agree that the next president will set the tone for the Supreme Court for many many years to come so it is vital for a democrat to make those appts which means we have to win this election

    the other way (none / 0) (#13)
    by diogenes on Tue Jan 22, 2008 at 01:46:38 PM EST
    If Roe vs Wade hadn't happened then the majority of states would have legal abortions today.  The ones that wouldn't are the same ones that have few or no abortion clinics anyway.  The Republicans would have been deprived of a major source of campaign cash/support without Roe vs Wade.  Many commentators think that this case was bad law and that the country was moving towards legalized abortion in most jurisdictions anyway.