[cross-posted from ANEWS Echo] [originally posted on 1:128/105] Via The NY Transfer News S

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[cross-posted from ANEWS Echo] [originally posted on 1:128/105] Via The NY Transfer News Service 718-448-2358, 718-448-2683 Subject: Casey v Planned Parenthood From bit.listserv.gaynet Tue Jun 30 21:11:54 1992 Date: Tue, 30 Jun 1992 10:51-EDT From: Scott.Safier@ISL1.RI.CMU.EDU Bower's v Hardwick was cited in 3 of yesterdays Supreme Court cases. I thought people might find it interesting how this decision is being used by the court: Chief Justice Renquist: We think, therefore, both in view of this history and of our decided cases dealing with substantive liberty under the Due Process Clause, that the Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a -fundamental right- that could be abridged only in a manner which withstood -strict scrutiny.- In so concluding, we repeat the observation made in Bowers v. Hardwick, 478 U. S. 186 (1986): -Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.- Id., at 194. Justice Blackmun: The Chief Justice's criticism of Roe follows from his stunted conception of individual liberty. While recognizing that the Due Process Clause protects more than simple physical liberty, he then goes on to construe this Court's personal-liberty cases as establishing only a laundry list of particular rights, rather than a principled account of how these particular rights are grounded in a more general right of privacy. Post, at 9. This constricted view is reinforced by The Chief Justice's exclusive reliance on tradition as a source of fundamental rights. He argues that the record in favor of a right to abortion is no stronger than the record in Michael H. v. Gerald D., 491 U. S. 110 (1989), where the plurality found no fundamental right to visitation privileges by an adulterous father, or in Bowers v. Hardwick, 478 U. S. 186 (1986), where the Court found no fundamental right to engage in homosexual sodomy, or in a case involv- ing the -firing of a gun . . . into another person's body.- Post, at 9-10. In The Chief Justice's world, a woman considering whether to terminate a pregnancy is entitled to no more protection than adulterers, murderers, and so- called -sexual deviates.- Given The Chief Justice's exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts. Justice Scalia: The emptiness of the -reasoned judgment- that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in this and other cases, the best the Court can do to explain how it is that the word -liberty- must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. The right to abort, we are told, inheres in -liberty- because it is among -a person's most basic decisions,- ante, at 7; it involves a -most intimate and personal choic[e],- ante, at 9; it is -central to personal dignity and autonomy,- ibid.; it -originate[s] within the zone of conscience and belief,- ibid.; it is -too intimate and personal- for state interference, ante, at 10; it reflects -intimate views- of a -deep, personal character,- ante, at 11; it involves -intimate relationships,- and notions of -personal autonomy and bodily integrity,- ante, at 15; and it concerns a particularly -`important decisio[n],'- ante, at 16 (citation omitted). But it is obvious to anyone applying -reasoned judgment- that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today's majority, see Bowers v. Hardwick, 478 U. S. 186 (1986)) has held are not entitled to constitutional protection-because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally -intimate- and -deep[ly] personal- decisions involving -personal autonomy and bodily integri- ty,- and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision; only personal predilection. Justice Curtis's warning is as timely today as it was 135 years ago: -[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpre- tation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.- Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting). -30- Some men have written that they don't understand what abortion rights has to do with gay rights. The Supreme Court seems to know... ________ __ \ / / \ \pink/ \__ -+--+- Scott Safier (corwin+@cmu.edu) \ / \ _ __ | | Center for Integrated Manufacturing \/ \__/ (__/\_)_/|_/|_/ Decision Systems B0/1 f+ w- g k+ s- m(+) e++ Carnegie Mellon member, T.S.A.K.C. "We do not have an anti-gay policy... The problems Boy Scouts are having are with people trying to get in - the gay community, the homosexuals, the atheists." --Burford Hill, Western Regional Director, Boy Scouts of America. 5 June 1992, San Francisco Chronicle

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