Monday, September 5, 2011

Roe and Heller

Very little of the criticism this page receives addresses the most valid point of criticism which is how can I be upset about DC v. Heller, but not Roe v. Wade, 410 U.S. 113 (1973)? But that also works the other way, How can you like Heller-McDonald, but not Roe v. Wade?

There is a simple non-legal answer which is that the most blatant form of tyranny is when a government interferes with a woman’s personal choice to have a child. This is a matter between a woman, her doctor, and her significant other with no place for government interference.

I am amazed at how many people want “gun rights” and freedom from government interference, yet balk at abortion. Also, it is amazing that people can call themselves “pro-life”, yet have no problem with shooting and killing someone. Or even capital punishment.

I mentioned use-benefit analysis in another post and personally, I find abortion to be far more of a right to be protected than some illusory “gun right”.

That said, I have several legal grounds to dislike Heller.

The first is that it is poorly written and does not stand scrutiny. Anyone who has read my posts can see that there are multiple lines of attack of this POS written by a committee.

Secondly, Scalia has had to violate everything he claims to believe in regarding judicial practise. The most egregious of these being that Scalia’s dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) acknowledged that abortion rights are of “great importance to many women”, but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it!

In fact, reading Planned Parenthood v. Casey makes me even more curious as to how Scalia could deign to find a right of self-defence in the Second Amendment.

Scalia does everything that he expresses disgust in in his Planned Parenthood dissent.

The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Roe v. Wade on the other hand, has some legal basis to support it. The Supreme Court rested its conclusions in Roe on a previously recognized constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment. Justice Blackmun said that the “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.”

I am of the school that the decision is correct, but for the wrong reason. The First Amendment States that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

I extend this right to include exercising personal beliefs concerning the beginning of life. The morality of abortion is grounded in the precise belief of the nature of the fetus in Christianity, Judaism, Humanism as well as other religions and ethical systems,. There is a general consensus that when the foetus becomes a human person, then abortions should be severely limited. The question is when does life begin? But that is an ethical decision. Most would confine abortions at the stage when the foetus is viable to situations that threaten the life of the pregnant woman; a very few would eliminate access to abortions totally. The problem that generates so much controversy is that no consensus exists in society over the point, between conception and birth, when personhood begins.

Jewish beliefs and practice concerning abortion do not neatly match either the “pro-life” nor the “pro-choice” points of view. The general principles of modern-day Judaism are that:

  • The fetus has great value because it is potentially a human life. It gains “full human status at birth only.”
  • Abortions are not permitted on the grounds of genetic imperfections of the fetus.
  • Abortions are permitted to save the mother’s life or health.
  • With the exception of some Orthodox authorities, Judaism supports abortion access for women.
  • ”…each case must be decided individually by a rabbi well-versed in Jewish law.”

Islam allows for abortion in cases where the mother’s life is threatened.

Sikhism has no problem with abortion.

Additionally, while the “right to an abortion” may not be specifically mentioned in the Constitution, it is a personal choice relating to health, personal finances, beliefs and other issues that government has no right to intrude upon.

As I said in my use-benefit analysis post, there are some things which are beneficial to society, of which prevention of unwanted children is one.

At this point, I have to reiterate another point I have made in my posts, that the Heller decision did not invalidate gun control laws. The problem is that Scalia did not give any idea of the scope of his new right.

The problem is that there are loads of knee-jerk RKBA people out there who follow rather than think. They are told that there is an individual right enshrined in this decision and then say this is about time. They do not analyse what has been written or think about the implications.

Next post in this series, Wedge issues.

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