Thursday, November 10, 2005

The Death of Roe v. Wade, abortion is only the tip of the iceberg.

There's a lot of Talk about whether the New Supreme Court nominee will vote to uphold or overturn Roe V. Wade but almost nobody who hasn't read the opinion realizes that it's about a hell of a lot more than abortion. It really about bodily autonomy in all it's forms. Take that away and things could be very different. I'm not usually an alarmist but Consider this:

Roe V. Wade held that a woman's fundamental right to privacy trumped any compelling state interest in protecting a fetus until at least the 2nd trimester (it's very important to read the text of these decisions, there are many who fundamentally misunderstand what Roe really said)
Suppose Alitio is the critical 5th vote to "overturn" Roe, thus making Abortion subject to regulation on a state by state basis, but also finding that states can regulate all phases of a woman's pregnancy without Constitutional impediment.

Now lets look at what some of those states have passed into law:
Several Red states have passed laws stating unequivocally that "life begins at conception". This used to be nothing more than an election year sop thrown to their conservative base, but in a post Roe world, it suddenly has huge significance. If life begins at conception then by definition, the state now also has a compelling interest in protecting that life and the mother has no counterbalancing constitutional right to privacy.

In order to vindicate their interests in protecting those unborn lives, a state could theoretically require weekly pregnancy tests of every woman of child bearing age. If anyone tested positive, they could immediately ban their consumption of alcohol, cigarettes, caffeine, or whatever else they chose, in order to "protect the life of the fetus" . (if you think I'm exaggerating, look at several prosecutions of mothers who have had what prosecutors decided was inandequate pre-natal care) And it gets worse:

Now I don't know about you, but I've never heard of a pregnancy test that is capable of detecting pregnancy at the moment of conception. Even the fastest ones usually require a week or two. and THAT means that those poor fetal lives have 1-2 weeks in which the state cannot detect their presence and protect them. Therefore, a state could, if it wished to be absolutely vigilant in protecting those fetuses (Fetii?), simply skip the pregnancy test and make it illegal for ANY woman of Childbearing age to indulge in any of these vices.

And that would be the tip of the iceberg, because, when passing a law that impinges on a fundamental right, the law is subject to "strict scrutiny" by the court which means for the law to be valid the state is required to show:

  1. 1) A Compelling State Interest: that is, that the state has an important interest to protect

  2. AND
  3. 2) Least Restrictive Means: That the law passed vindicates that interest by the least restrictive means possible


Now where a fundamental right is NOT involved the law is subject only to the "rational basis test" which means that the state merely has to show only that the law had some rational basis for being passed OR the Court can find a conceivable rational basis for the law whether or not there is any evidence this really was the basis for the law. It's an incredibly low standard that lets nearly ANY law passed stand unless it infringes a constitutional right

In other words, if Roe goes away, Margaret Atwood could look tame compared to what comes next.

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