Sunday, November 27, 2005

The First (Unpublished) Federal Decision on Abortion

Here's a speech by one of Judge Friendly's clerks, Judge Randolph of the DC Circuit. For the first time he makes public an unpublished opinion (the law was changed so the question was mooted before the decision could be published) by the eminent Judge Friendly. Essentially Friendly responded to the argument that the Constitution protected a right to privacy by pointing out that the theory that people should be allowed to whatever they want in the absence of harm to others (a Millsian concept) is not a constitutional principle and even if it was, the rights of the fetus should be taken into account. Roe, of course, ruled just the opposite.

Even the snippets we have in the speech far exceed the polemics of Roe. Roe is one of the worst decisions of the 20th century, not just because it reached an unconscionable result from a separation of powers perspective, but also because it extended an already contrived constitutional principle to even more absurd grounds without even explaining how the principle properly applies. How does abortion fall within a right of privacy? What about having an abortion is private? The decision? Well, would the action of running around naked in the street fall within this right because the decision to do so was private? And it's not enough that the state has a right to ban nude walking for other reasons. In the absence of those reasons would walking around naked be a private act? I can't imagine anything more public.

Roe led to decisions like Lawrence, which opened the door for all types of judicial intrusions into the domain of the legislature on the ground of protecting "privacy" or "liberty." Goodridge, the decision of the Supreme Judicial Court of Mass. that required the state to recognize same-sex marriage, was only possible because of Roe and its offspring. While liberals complain that Roe must be upheld or society will crumble, I believe it's the duty of the Supreme Court to overturn it, if just because it's a poor decision.

No comments: