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- Newsgroups: talk.abortion
- Path: sparky!uunet!spool.mu.edu!agate!boulder!ucsu!ucsu.Colorado.EDU!fcrary
- From: fcrary@ucsu.Colorado.EDU (Frank Crary)
- Subject: Re: democratic platform
- Message-ID: <1992Sep5.170753.3880@ucsu.Colorado.EDU>
- Sender: news@ucsu.Colorado.EDU (USENET News System)
- Nntp-Posting-Host: ucsu.colorado.edu
- Organization: University of Colorado, Boulder
- References: <1992Sep3.004352.8495@cfctech.cfc.com> <PA146008.270.715552135@utkvm1.utk.edu> <Bu369F.J8s@rice.edu>
- Distribution: usa
- Date: Sat, 5 Sep 1992 17:07:53 GMT
- Lines: 54
-
- In article <Bu369F.J8s@rice.edu> kossack@qvi.com writes:
- >|> It is, however, generally the kiss of death to try and argue for
- >|> something on Ninth Amendment grounds. You will be summarily ignored.
- >|> It's been a long time since anybody took Amendments Nine and Ten
- >|> seriously.
-
- > Wait a cotton-pickin minute, pardner. I thought that the
- > Roe vs. Wade decision and the Federal mandate for legal abortions
- > was based on those very amendments, specifically the so-called
- > right-to-privacy, a right that the FFs forgot to ennumerate.
-
- No, unfortunately, Roe v. Wade wasn't based on the Ninth Amendment.
- The entire basis of the ruling stands on much less substantial
- grounds than that. As I understand is, the logic was as follows:
-
- An earlier ruling, Griswald v. Conneticut, ruled that a basic right
- to privacy exists. The majority opinion (the one that really counts)
- argued that this was an implicit part of the Fourth Amendment (E.g.
- the requirement for police to get warants to search your home, was
- included in the Constitution because of an unwritten assumption that
- one has a right to privacy.) There was a concuring opinion (that is,
- a Justice who thought the Court was right but for the wrong reasons)
- who mentioned the Ninth Amendment. But, in terms of case law, I don't
- think concuring opinions have much weight.
-
- In Roe v. Wade, the Court cited this right to privacy as implying
- a right to extremely personal medical treatments (abortions) without
- state regulation. (E.g. state regulation of abortions is an invasion
- of privacy.)
-
- This logic is fairly weak on at two key points: The right to privacy
- is not obviously part of the Fourth Amendment. If the Fourth Amendment
- is the only protection of that right, then a fairly strong case
- could be made for governemnt restrictions (technically, all the Amendment
- says is that the government can not invade your privacy with unreasonable
- searches and seizures, there are _lots_ of ways to invade privacy without
- doing either.)
-
- Second, the leap from a right to privacy to a right to certain medical
- treatments isn't crystal clear either.
-
- Essentially, Roe v. Wade is two very questionable steps away from any
- real part of the Constitution. It would have been better is the
- Court had simply ruled on Ninth Amendment grounds (The Ninth Amendment
- basically says that there are alot of individual rights that are
- not listed in the Bill of Rights, and they are just as important as
- the listed ones.) Not only would a Ninth Amendment ruling have made
- Roe v. Wade much harder to overturn, but it also would have established
- a strong precedent for the protection of other improtant rights that
- are unmentioned in the Bill of Rights.
-
- Frank Crary
- CU Boulder
-
-