Tuesday, January 31, 2017

Trump Nominates Gorsuch

President Trump just nominated Judge Neil Gorsuch of the Tenth Circuit to fill Justice Scalia's vacant seat on the Supreme Court.


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This comment might be fashioned into a worthy “guest post,” if those are allowed on this blog.
_Roe v. Wade_ rests on shaky grounds – an unenumerated right to privacy, and a "penumbra" emanating from other rights that can shift shape. It could be overturned if Judge Gorsuch and/or other President Trump appointees tip the Court's balance. Let's discuss whether there's a constitutional alternative to _Roe v. Wade_, one based on due process jurisprudence.
Two significant lines of case law stemmed from that clause. The first of these is the _Lochner_ line of economic regulation opinions. Those holdings precluded states from regulating businesses using the freedom-of-contract rationale. Faced later with the sweeping New Deal economic legislation the Court rejected the “Lochner” challenges. That jurisprudential tendril seems dead.
The second line of due process opinions arose later, and it’s getting more vibrant. These are the private liberties opinions: _Planned Parenthood v. Casey_ is seminal, 2003’s opinion striking down the Texas same-sex prohibition, and the recent same-sex marriage opinion all find Americans have inherent, substantive liberty interests in intimate personal conduct (conduct that isn’t enumerated as a protected right). The following passage from _Lawrence v. Texas_ in 2003 evinces the strength of the due process clause in the personal activities realm, and extending this to the “right to choose” wouldn’t be a stretch:
“In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.’
Don’t women “seek[ing] autonomy” with regard to their choice of terminating a pregnancy deserve just as much protection from state actions as when they make those other significant personal decisions?

Posted by: Art Cowen | Feb 1, 2017 10:54:15 AM

I think the argument from the other side of the aisle relates more the after-born person's rights under the same amendment being cited as protection for the woman's right to chose. It's almost as if members of the general public, split down party lines, are speaking directly past one another without considering the other's argument. Of course, that raises other issues; at what stage during feotal development does the after-born qualify for constitutional protections? That question seems to have been answered.

Posted by: Mary Catherine Baca | Feb 2, 2017 5:49:13 PM

Thanks for the comment Mary Catherine Baca. I'd agree that "the after-born" has protected rights/interests, and those have been circumscribed in previous opinions. Those are outweighed by the mother's rights/interests in T1, increase with the gestation period, are greatest in T3, etc.

Posted by: Art Cowen | Feb 3, 2017 10:52:32 AM

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