Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day
Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day
Kep, I don't believe the decision was founded upon a right of privacy between doctor and patient. It was founded upon a zone of privacy each person has against government intrusion. That is a simplistic description but a fair one, I think.
Even that kind of reasoning is problematic: is an infant still in the womb a "person" or not? does s/he have a right not to have their brains sucked out by a vacuum cleaner inserted at the base of the skull, even if s/he is technically still inside the womb?
The problem here is that there are two different parties who
each have a right: the woman has a right to control over her own body, and the unborn infant has a right to life ("equal protection under the law"). That's why the general consensus seems to be that the former right ends when the latter right begins, whenever the fetus transitions from "it" to a person. Right now that standard is the third trimester.
When two different parties
each have a
conflicting right, then generally (not always) the problem becomes political, not judicial.
As Gorsuch said, "any judge who is happy with every decision he's ever made isn't doing a very good job." There are conflicts all the time that need to be decided on the law, even if the law should eventually be revised. We have procedures in place to revise laws which people don't like any longer. Those procedures generally do
not include having judges re-write them on the fly.
Prohibition was an absolute disaster from which we are still suffering grievously today: it took a Constitutional amendment to impose it and another to relieve us from the worst of it.
