Best Of The Web
“It’s increasingly clear that Roe v. Wade, the U.S. Supreme Court decision protecting a woman’s right to choose abortion, is in jeopardy. But what is Roe all about? Privacy? Liberty? Women’s equality?
Its survival may depend partly on the answer, so let’s go back to first principles.
The Roe opinion, written by Justice Harry Blackmun in 1973, was entirely about privacy. As Blackmun put it, the right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
For two reasons, that’s awkward. First, the U.S. Constitution does not protect a general right of privacy at all. Second, any right of privacy, if it does exist, would not seem to encompass the right to choose abortion. Privacy usually refers to the right to control access to personal information. 1 What does abortion have to do with that?
In 1992, the court switched gears. In an opinion jointly written by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, the authors spoke not of privacy but of liberty. They said that “there is a realm of personal liberty which the government may not enter.”
They added that a “mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she can bear” — suffering that “is too intimate and personal” for government to override.
The word “liberty” is in the Constitution, so it’s an improvement on “privacy.” In ordinary language, liberty does include the right to make intimate and personal decisions.
Still, the Constitution does not protect all such decisions. You can’t marry your mother, or more than one person. There is no constitutional right to smoke cigarettes. Liberty can be curtailed when the interests or rights of others are at stake. What about the fetus?
In a short, cautious essay published in 1985, eight years before she joined the Supreme Court, Ruth Bader Ginsburg struggled with these issues. She made two points. First, she argued that Roe badly overreached. In her words, “the court ventured too far in the change it ordered.””
JJ Editor's Picks
"‘Great-power competition” is increasingly a central concern in Washington foreign-policy circles. The 2017 U.S. National Security Strategy warns that “China and Russia challenge American power, influence, and interests, attempting to erode..."
"Just to be sure I heard it correctly, I replayed former vice president Joe Biden’s eye-popping gaffe from Thursday night’s debate instructing poor parents to put the record player on to help their children learn. “#Record player” was trending on..."
"For many people, getting away from it all means decamping to a cabin in the woods or a house by the beach. Soon there may be another option: lifting off to a hotel serenely orbiting high above the planet. Though space hotels have long belonged..."
"I didn’t lead a life of any particular hardship growing up, but as a kid in New York in the 1980s, I did have to do without certain things that many of today’s middle-class parents deem essential — a yard, for example — and my dad tells me..."
"Not too long ago, the “gig economy” looked as if it just might be the future of work in America.The rapid rise of digital platforms that let people earn money by driving passengers, delivering groceries, walking dogs or running errands for..."
""The Goldfinch" has a painting at its center, but despite a classy palette of ingredients conjures a lifeless, disjointed picture. Adapted from a Pulitzer Prize-winning novel, the movie represents a transparent bid to bring the book's prestige..."
"To make sense of what's going on as Israelis head to the polls Tuesday, one would need to be part mathematician and part psychologist. Determining who will sit with who in a prospective coalition is like choosing sides at a schoolyard pick-up..."
"It’s humiliating to consider the things we know instead of the things we should know. I can’t tell you exactly how the Michigan Republicans are trying to illegally gerrymander their state, but I know why Lana Del Rey is angry on Twitter. So it..."