NIBBLING AWAY CONSTITUTIONAL RIGHTS

Suppose someone gave you a constitutional right and then treated you like a felon for trying to exercise it?

There's a bill before Congress that appears to do that.

Since the highly controversial abortion decision, Roe v. Wade (1973), women have had a constitutional right to control their own as decision whether to bring a child into the world when they become pregnant, as opposed to, say, the neighbors telling them what to do.

If it were just the neighbors telling you how to live, you'd probably tell them to bug off, it's none of their business, because it isn't.

But suppose the neighbors get up a petition to present to the city council asking it to pass an ordinance requiring you to have this baby being formed inside your body.  Should you be forced to bring this fetus to term because the neighbors have succeeded in getting the local government to force you to become a mother for the first time, or again? 

Suppose you can't afford to raise a child? 

Suppose you're a child yourself?  Maybe that's why you're pregnant...you don't know what you're doing, or one of those smart little buggers got through.

Suppose you can't even take care of yourself properly, much less another person. 

Suppose you know that your parents, if told, will first beat you and then force you to have this baby, only to give it away. 

Suppose you ask a friend to take you to a neighboring state just across the river, or over an invisible line, to get an abortion. 

Suppose the law makes that a felony, to help a friend get an abortion over the state line to avoid having to tell the parents.

That's what this new bill proposes to do, to make it a federal felony to help a friend in need get an abortion across a state line.

We can look forward to the next FBI series:  I was an undercover abortion transporter for the FBI, featuring dramatic music and the silhouette of a G-man carrying a Tommy-gun, just like in the old days when we had real G-men. The G-man was the feared FBI guy with the same Tommy-gun that ventilated John Dillinger when he exited the movie theater with the lady in red.

"I was a Communist for the FBI" was a book about an FBI guy who infiltrated the Communist Party of the U.S.A.  It was said that had it not been for the number of dues-paying FBI guys who'd infiltrated the Party it would've collapsed a long time before it did.  I wouldn't know, I just lived through those days and rooted for, you guessed it, "the FBI in peace and war."  Another of the slogans of the day.

I guess it was all real. We were fighting Commies in Korea and Vietnam.  The bullets were real enough and a lot of guys died.  All those John LeCarre and James Bond books kept us stoked.

I suppose we can look forward to a whole new genre of literature along the lines of "I Crossed the Line," the amazing story of a young woman who crossed the state line to have an abortion, a felony; had she stayed home it would've been legal!  And the friend who gave her the ride and wound up in the federal penitentiary where she learned how to smuggle drugs instead of scared teenage girls.

Thank God for lawmakers and zealots, for without 'em there'd be no need for conlawprofs, would there?

For more on the wonderful new day we can expect to see, check the continuation below:

           

from the April 27, 2005 edition - http://www.csmonitor.com/2005/0427/p01s02-uspo.html   A new federal move to limit teen abortions The House considers new out-of-state restrictions. By Linda Feldmann | Staff writer of The Christian Science Monitor WASHINGTON - The abortion issue has long undergirded some of the biggest political questions of the day - from how federal judges are confirmed to whether a politician can credibly compete for the presidency. Now, with little fanfare, the House of Representatives is set to take up legislation Wednesday that would impose new restrictions on access to abortion itself, specifically, in the case of minors. The bill, called the Child Interstate Abortion Notification Act, or CIANA, would make it a federal offense to transport a minor across state lines for an abortion in order to evade a parental notification law, unless she has obtained a waiver from a judge. The bill would also require a doctor to notify a minor's parent before performing an abortion, if that girl is a resident of another state. The second part also contains provisions that allow a minor to get around parental notification. In contrast with the ban on so-called "partial-birth abortions," which is not in effect as it faces continued court action, legal experts say that the new teen abortion restrictions have a much better chance of becoming the law of the land and would have broad impact. "This will impose real obstacles and pain upon real people," says David Garrow, a legal historian at Emory Law School in Atlanta. "And it's a far better than 50-50 shot it'll be upheld rather than struck down as unconstitutional." Other versions of this bill have passed the House before, most recently in 2002, but the Senate has never signed off on it. Since last fall's elections, though, the Senate has netted up to three more abortion-rights opponents, and supporters of CIANA are optimistic. Crosscurrents Abortion-rights advocates are caught in a bind: The bill goes to the heart of parental rights, an emotional issue particularly for social conservatives. Historically, the public has strongly supported parental involvement in decisions related to minors' abortions, as long as there is a judicial bypass procedure for girls in abusive families. Furthermore, abortion-rights supporters are focused on preserving the right of the Senate to filibuster judicial nominees - a procedure they believe is crucial to keeping antiabortion judges out of federal courts, and, ultimately, preserving the existence of the constitutional right to abortion. With a Supreme Court vacancy expected soon, the future of majority support for the landmark 1973 abortion decision, Roe v. Wade, is a central question. As for CIANA, "this is tough legislation to argue against on its face," says Helena Silverstein, a political scientist at Lafayette College in Easton, Pa., and author of a forthcoming book on judicial bypasses. "The appeal of parental-involvement mandates is so strong, and this legislation appears to bolster that." What troubles Ms. Silverstein about the legislation is that it rests on the presumption that the judicial-bypass process works. "The world is not anywhere close to ideal," she says. "There are instances where minors try to secure the right to a judicial bypass and fail. Some judges are not willing to grant a bypass, some refuse to preside. Sometimes court personnel are not aware there's a process and will turn a young woman away." In all, 32 states require some form of parental involvement in a minor's abortion, with most defining "minor" as someone under age 18. (In a few states, 17 is the age.) Abortion-clinic operators have noted that since the advent of parental-involvement laws in the late 1980s, minors are often having abortions later in pregnancy than they used to, though statistics are difficult to come by. For some teens, the delays have pushed them beyond 14 weeks of pregnancy, the point at which some states require a hospital abortion and other restrictions. Supporters of bill Opponents of abortion rights argue that the bill appropriately encourages more family involvement when a teen finds herself in a crisis pregnancy. On the issue of health exceptions, a major sticking point on much abortion legislation, abortion foes say the bill adequately addresses life-threatening health emergencies. And, write officials of the National Right to Life Committee in an April 22 letter to Congress, "in a case in which a minor has a genuine serious physical health problem, that is all the more reason that a parent should be involved. Only the parent is likely to know the child's full medical history, and it is likely to be a parent who must recognize and respond to an infection or other complications of an abortion - complications that a parent might well overlook if he or she does not even know that an abortion has occurred." At a hearing on Capitol Hill last month, the mother of a 14-year-old girl from Pennsylvania told the story of how her pregnant daughter was taken by her boyfriend's parents into neighboring New Jersey, which has no parental-notification rules, for an abortion, which she did undergo. The woman testified that she knew her daughter was pregnant and that, in fact, "my daughter [had chosen] to have the baby and raise it. My family fully supported my daughter's decision to keep her baby and offer her our love and support." Under CIANA, the New Jersey clinic would not have been allowed to perform the abortion without parental consent or a judicial bypass. Opponents of CIANA argue that the bill fails to pass constitutional muster in many ways. Jennifer Dalven, deputy director of the ACLU Reproductive Freedom Project, lists three: First, the bill contains no exception for circumstances when the health of the minor is endangered. The bill does discuss cases when a minor's life is endangered, but health is not addressed. Abortion foes object to health exceptions, saying they are used to cover emotional distress and could be employed for any abortion. Second, there is no judicial waiver option in states with no parental-involvement laws. And third, Ms. Dalven says, the bill violates guarantees of equal protection under the Constitution. Specifically, she says, the bill fails by requiring a pregnant minor to comply with her home-state laws in addition to those of the state where she intends to undergo an abortion. Full HTML version of this story which may include photos, graphics, and related links www.csmonitor.com | Copyright © 2005 The Christian Science Monitor. All rights reserved. For permission to reprint/republish this article, please email Copyright

Comments

[Jeff F]

First, I disagree with your premise "Suppose someone gave you a constitutional right and then treated you like a felon for trying to exercise it?"

Re: abortion, the Court has recognized a Constitutional right that its says has existed since the 14th Amendment. The Court would never claim to have given anyone a right. Regarding abortion specifically, I agree with President Clinton: abortion should be safe, legal, and rare. The problem with proscribing abortion is, once you get past the slogans and emotions, it simply doesn't make sense.

First, why is abortion illegal? In Roe v Wade and Planned Parenthood v Casey, the dissent claimed the State could proscribe abortion to further the state interest in the life of the fetus. It also found no constitutional right because, although the court may look to tradition and history to find rights implicit in our concept of "ordered liberty", J.Scalia noted that the nation had long since proscribed abortion and, though he admitted that a woman does have a liberty interest in her own body, as a society we must not value that choice/right and therefore it is not protected. There were other arguments but these were two of the big ones that wound through most of the dissents in the abortion cases. In a blog comment, I must necessarly be limited in scope.

Two problems with these arguments.

Re: Scalia's argument to tradition that we because the nation has always proscribed abortion, we do not value the choice a woman can make in this regard. When the first abortion law was passed (I believe in the 1820s in Conn & NY but don't quote me), abortions were dangerous to the woman's health. Very dangerous. In fact, any medical procedure at the time carried a measure of risk but abortions especially so. Scalia doesn't examine why abortion's were proscribed. If for example, the legislative history noted that the reasons they wrote the law was to discourage women from taking those risks, those reasons are not part of the 21st century. No longer are abortions necessarily a risk-your-life procedure, in fact abortion is actually safer than carrying a baby to term. At least not as long as they are legal and able to be performed by competent medical professionals. A second reason abortions may have been proscribed is, in America, circa early 1800s men controlled everything and women were property. A married woman could not decide what to do with her body because in the law, her body belonged to her husband. Thankfully, our values, medical processes and legal attitudes have changed and Scalia's reliance on laws written during this period bear little resemblance to the reality of today.

Re: "Value of Life". Let me take the argument a little further. If society and the law feel the destruction of a non-viable fetus is murder, then we must not make an exception in an anti-abortion law in any cases. For example, if a 12 year girl is raped by her trogoldytic father, she must carry the baby to term, right? After all, if the law allows her an abortion, the law, according to some, is sanctioning murder. But if the law forces her to carry the baby to term, society is forcing her to live with the shame of the incest-rape. Even if she puts the baby up for adoption, the whole world now knows she has been raped by her father and she must live with that for... how long? Yes, this is an exceptional situation but if we make an exception for this girl and allow her to abort a healthy fetus, we have admitted that the life of this fetus isn't "valued" or that we value other interests higher. Now, in a debate I would push down the slippery slope until we find the not-so-bright-line of our values.

And then I would start pushing to address the health of the mother situation where an anti-abortion proponent claims to have the right to make a values decision wherein a family decides if a mother should be willing to risk her health to give birth. Even Rehnquist, Scalia and his hand-puppet Thomas would make an exception for the "health of the mother" which makes me ask: just how firm are they on the "value of fetal life". Does the health requirement mean "life or death" or does "risk of serious depression" qualify? And how much of a risk is required? And, if one is willing to make an exception for the health of the mother for what some call murder, then, in a sense, you are recognizing what becomes a self-defense claim for the mother: "but my fetus was going to kill me so I had to defend myself and kill it." That quickly becomes ridculous.