During last week’s Democratic Presidential Debate, there was a brief question and answer session concerning the recent decision by the US Supreme Court to uphold a specific abortion ban. A number of Dems emphatically denounced the outcome. The speedy exchange was only a glimmer in the 90-minute debate, but it addressed an issue that should be of concern to the American people.
The Supreme Court’s 5-4 decision upheld a law banning a rarely used procedure carried out in the middle-to-late second trimester of a pregnancy. Understandably, the Dems did not defend the procedure itself – which should only be used in cases where the mother’s health is at risk – but instead focused on the court’s rationale and the further implications the decision could have.
As Delaware Senator Joe Biden pointed out, the decision echoes the sentiments of Robert Bork, the legal scholar and Reagan nominee for the Supreme Court. Bork’s failed nomination brought attention to the judicial philosophy of originalism, which attempts to interpret the constitution as the founders originally intended it. This narrowly decided case was a huge boost to the originalist movement, and deeply troubling to those who advocate a right to privacy. A right to privacy is implied in the Bill of Rights and the 14th Amendment of the Constitution; it was subsequently established in cases such as Griswold vs. Connecticut. Even with this precedent, originalist judges prefer interpret the law as they see fit.
Judges such as Antonin Scalia and Clarence Thomas have followed in Bork’s footsteps, advocating similar textual approaches in their writings. With the recent addition of Bush appointments Samuel Alito and John Roberts, it is clear that the Court has shifted to the right, putting privacy and civil rights issues in the hands of this unconventional theory. Voters tend to adhere to the originalist approach, only when it happens to suit their needs – the pro-life crowd have been ardent fans of late. But the theory can have broad implications relating to various aspects of everyday life: surveillance, religious freedom, gun rights.
Abortion is a complicated subject, one that should exist outside the standard pro-life/pro-choice sentiments spouted about in public forums. The issue deserves some serious discussion about personal responsibility, the plight of the poor and universal access to decent health care. Problems like these, and many others, need to be discussed before we as a society can determine how to make the practice of abortion as rare as possible. The first Democratic debate briefly began this conversation by broaching some of these topics, we can only hope it will continue.
// Notes from the Road
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