[Originally posted on goofyblog 8.31.06]
The eventual repeal of Roe vs. Wade (it’s coming) would have very little effect on a woman’s ability to get an abortion in the US, because even right now, only 13% of all counties in America have any abortion providers. The states that are abortion-friendly (Maryland for the Southeast, California for the West, etc.), where women who want an abortion are already forced to travel, would still be available if and when the Federal law is repealed.
However, what would change is the privacy doctrine the Roe decision helped to establish and this would drastically alter our society.
A clue as to how this would happen comes from Justice Scalia’s dissent in that Supreme Court decision striking down Texas’ anti-sodomy laws in 2003. Scalia was in the minority then, but is probably in the majority now. His dissent reads in part:
Over 120 years ago, Alexis de Tocqueville warned us about this:
There is no doubt this is what our Founding Fathers intended:
It isn’t just the right to an abortion, it’s the idea that unless the rights of the individual are protected from the mob we will lose what makes our country unique and great.
The eventual repeal of Roe vs. Wade (it’s coming) would have very little effect on a woman’s ability to get an abortion in the US, because even right now, only 13% of all counties in America have any abortion providers. The states that are abortion-friendly (Maryland for the Southeast, California for the West, etc.), where women who want an abortion are already forced to travel, would still be available if and when the Federal law is repealed.
However, what would change is the privacy doctrine the Roe decision helped to establish and this would drastically alter our society.
A clue as to how this would happen comes from Justice Scalia’s dissent in that Supreme Court decision striking down Texas’ anti-sodomy laws in 2003. Scalia was in the minority then, but is probably in the majority now. His dissent reads in part:
The Fourteenth Amendment expressly allows States to deprive their citizens of liberty, so long as due process of law is provided. The Due Process Clause prohibits States from infringing on fundamental liberty interests by using the doctrine of so-called “heightened scrutiny” protection—but only rights which are “deeply rooted in this Nation’s history and tradition” qualify.By the reasoning above, any practice that was banned in the 1700s can still be banned today by a simple majority. Moreover, the majority is the only entity that matters in American democracy. So, any minority (gays, blacks, women who want to chose, political parties, dope smokers, etc.) can be criminalized by legislative majority.
Criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because sodomy was a criminal offense and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” and thus was not “deeply rooted in this Nation’s history and tradition.”
Roe v. Wade recognized that the right to abort an unborn child was a “fundamental right” protected by the Due Process Clause but the Roe Court made no attempt to establish that this right was “deeply rooted in this Nation’s history and tradition.”
Let me be clear that I have nothing against homosexuals, or any other group. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
Over 120 years ago, Alexis de Tocqueville warned us about this:
“The main evil of the democratic institutions of the United States does not arise from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. If an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority.The type of arrangement above is really what’s “deeply rooted in this Nation’s history and tradition,” not, as Scalia claims, a pure majority rule government. The shield against tyranny by the majority has been responsible for allowing individuals to view sexually explicit material, participate in consensual sex in the privacy of their own homes, buy and use contraception of their choice, a woman’s right to choose, the removal of Jim Crow laws discriminating against blacks and countless others advances.
“If, on the other hand, a legislative power could be so constituted as to represent the majority without necessarily being the slave of its passions, an executive so as to retain a proper share of authority, and a judiciary so as to remain independent of the other two powers, a government would be formed which would still be democratic while incurring scarcely any risk of tyranny.”
There is no doubt this is what our Founding Fathers intended:
“The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period.”Scalia et al, don’t understand or acknowledge these issues. And if you watch shows like Hannity & Combs or The O’Reilly Factor on Fox, you see that they are also based on this mob/majority mentality.
–Thomas Jefferson
It isn’t just the right to an abortion, it’s the idea that unless the rights of the individual are protected from the mob we will lose what makes our country unique and great.
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