I don't dispute that the court's interpretation is treated as equally authoritative as the Constitution itself. I argue that the equation is illogical and destructive to ordered liberty.
What Harry Blackmun (or any other Justice) said about the Constitution is *not* the Constitution, and this is easily demonstrated : a later court can overturn an earlier one - indeed that possibility is the topic of this thread - but no court can overturn even a single punctuation mark in the Constitution.
Yes, a later court can overturn an earlier one, but the point is that conservative judging nevertheless respects precedent, especially when the issue isn't extending rights, but taking them away. The abortion right has been guaranteed by the Constitution for over 40 years. To a woman, I'm sure you'll agree that the right is quite fundamental. Despite their best efforts and intentions, women DO have unplanned pregnancies, and face existential crises as a result. Yes, I recognize the irony of using that word in a conversation about abortion, but it cannot be denied that the term "crisis pregnancy center" is no misnomer. Women need support, including financial and emotional support, to deal with an unplanned pregnancy. They have for 40 years now at least had the freedom of knowing the State was not going to take their options away.
As for "no court can overturn a single punctuation mark in the Constitution", there are plenty of reasonable folks, folks I disagree with, who claim the Heller decision read the entire predicate clause out of the Second Amendment!
Basing the law on an ontological contradiction is a root cause of the conflict that exists in the country today and has contributed significantly to the widespread contempt many hold for the legal profession, including the Supreme Court.
I'd say that contempt is misplaced, but I know you won't believe me. I'll just say there are lots of decent men and women who consider their work as lawyers as contributing to the betterment of things.
But you are correct that the original Roe decision was a thundershock in that it wiped away the laws in most of the states, and substituted the will of the Court for the will of the people. That is, in and of itself, disturbing, and I have always been of the view that Roe would never be legitimized until it was codified in the form of a Constitutional amendment. That will, of course, never happen, so it has become the ultimate political football. No issue divides us more as a people, and no issue is more directly the root cause of our current distress that some suggest is a budding civil war.
The "abortion right" is a manifestation of the ontological contradiction in law, justified by the same self-serving definitions of "human" used by earlier generations to argue that some exist merely for the convenience of others and therefore enjoy no legal protections. The day will come when abortion is compared to abolition, and Roe v. Wade will be its Dred Scott.
I don't think so. But the day WILL come when women are able to avoid or address unwanted pregnancies without the need for abortion. The liberty principle underlying the abortion right - the natural right to self-determination, extended to the female of the species - is not going away.
There is nothing hypocritical in distinguishing the Second Amendment from Roe v. Wade or distinguishing ownership of a gun from ending a human life. What is fundamentally hypocritical is the assertion that women can freely choose to participate in intercourse and then retroactively shield themselves from the consequences of that choice by taking a human life, but men have no such retroactive choice to shield themselves from the consequences by refusing child support. That we do not generally make the latter argument reveals the contradiction in our thought.
Again, the natural right that is protected is the right of self-determination. It takes two to tango, but the burden of pregnancy and childbirth is the woman's alone. And far too often, the burden of raising a child falls, too, on the woman alone. Is it hypocritical to afford few rights to the father? What right of self-determination does the father possess? And if he does, can it not be dismissed as cavalierly as some do with respect to women, by saying the guy should have just kept his pants zipped?
Owning a gun, whether in secret or in the open, does not end a human life, and is explicitly recognized in the Constitution. It is trivially easy to distinguish, both constitutionally and practically, that gun ownership is in no way analogous to abortion.
Not so fast - each is a tool to effectuate what is perceived as an important natural right. And where they certainly are the same is that, for each, one political side thinks that one Constitutional right is sacrosanct, and the other is illegitimate. And each political side refuses to compromise in its view that the state has no business interfering with the exercise of the right it favors, and to strip away the right it disfavors.
The state makes no demand on any woman that she reproduce against her will , regardless of the legal status of abortion. Women are completely free to choose not to reproduce, in the same manner that men are completely free to choose not to reproduce.
It is precisely the role of the state to impose moral beliefs on all members of a society. Those imposed moral beliefs are called "laws", and as a society we do expect everyone to abide by them, whether as individuals they agree with them or not.
If you really believe the state cannot impose this moral belief, then under what circumstances can it impose any moral belief? Why are murder, or theft, or rape, or slavery illegal? All are imposed moral beliefs, why not make a "pro-choice" argument on any of these? For that matter, why not make a "pro-choice" argument for a baker to make, or not make, a wedding cake?
We do not disagree regarding the moral belief. We disagree regarding the authority of the state to compel a woman to reproduce, in order to protect a fetus that cannot yet survive on its own. There is no answer I can give that will satisfy you that the fetus is undeserving of protection, especially if you ascribe to the fetus a soul.
But we have chosen to create a secular Republic, with a Constitution predicated on protecting the individual rights of the living. It is harsh to say so, but the Constitution does not protect non-viable fetuses, except as derivative of the rights of the mother. So an armed robbery gone awry can result in two victims, when a mother and fetus are killed. The mother's rights included her expectation that her growing child would have the state's protection. But vis a vis the mother herself, the situation of Solomon emerges. A choice must be made - is the woman's right of self-determination more important than the fetus' right to life?
I don't think the State can make that choice. I think the woman, and her support system of partner, family and community should she engage it, must make that choice. And so my regular mantra is -
persuasion, not coercion.
