That Very 'So-Called' Right to Privacy

Well, we sure know by now, thanks to the John Roberts hearings, what the great issue of our times is. It’s stare decisis, which is code for "the right to privacy," which is code for Roe v. Wade, which is code for "the right to choose," which is code for abortion, which is code for keep the government out of my bedroom!

The brilliance of Judge Roberts was nothing. The character of Judge Roberts still less so. His experience on the bench — faugh! None of it mattered.

It transpired that one thing mattered: If John Roberts were confirmed as chief justice of the United States, would he scorn stare decisis (the principle of respect for court precedents), meaning, would he help overturn Roe v. Wade, thus ending the single federal standard that obtains in 2005 for abortion? He didn’t say he would, but neither would he vow to the Senate Judiciary Committee world that under torture he wouldn’t. Hence the sniping and sneering from certain senators, including Ted Kennedy, about the state of Roberts’ "heart."

From the looks of things, the Senate will end up confirming Roberts anyway. That still doesn’t dislodge the apprehension — which if anything should be growing — that the United States of America is in servitude to a narrow cultural dogma. Whatever else modern America stands for has nothing like the centrality in our affairs of the right to abort a pregnancy.

The Constitution, it almost seems, exists to make sure no woman has to have a baby she doesn’t want. No sucker game of this magnitude was ever before played on the citizens of a great democracy. It all comes down to abortion. Oh, boy. 

In a Supreme Court context, one can understand well enough why this is so. The Supreme Court created the right to abortion, extrapolating from a generalized and unexceptionable understanding that no government controls, or should control, every area of life. The court majority — two justices, including the late chief justice, William Rehnquist, objected — could point to precedents for its decision to strike down the anti-abortion laws of several states. The justices just thought it would be a good idea. So they did it.

One trouble — there were many — with the make-it-up-as-you-go approach to constitutional law is that it lacks proper constitutional roots. The court can say that red is somehow better than yellow or that two plus two equals five-and-a-half. Yet in the absence of a fact-grounded, objective basis for such conclusions, a later court may well feel entitled to peer down its spectacles and exclaim, "What???!!!" If it does, precious precedents won’t cut much ice, such as those that reinforced the old, now-fallen segregation regime.

What earns abortion, and Roe v. Wade, the presumption of immunity from such discipline? Little else but the jut-jawed determination of "women’s rights" organizations to have Roe though the heavens fall — and their altogether impressive success at intimidating male senators into agreeing with their viewpoint. Roe doesn’t have to be right. It needs only to be sacred. Which it is; and if you don’t think so, you didn’t watch the Roberts hearings. You didn’t watch senators like Kennedy try to make a nominee for chief justice squirm and even abase himself in hopes of averting embarrassment.

The odd piece of freight here is that senators who insist on maintenance of what Roberts, in an old memo, called "the so-called right to privacy" — these are the ones who should be putting grocery sacks over their heads. They’ve no constitutional leg to stand on, save that out-of-the-blue assertion by the court majority in Roe 32 years ago — yet because they agree so heartily with that assertion, they want it to stand forever. And as for you, Judge John Roberts, if you don’t like it that way, you can take your brilliance and character and you can just — get lost, that’s what!

Which it now seems he won’t have to. And neither will the many — may their tribe increase over time — who see right through the balderdash that constitutes current abortion law.