Where the justices did not go

Star-Telegram | Don Erler:

“Two days ago, America observed the 33rd anniversary of Roe vs. Wade, which created a constitutional right to privacy so unfettered that it permits women, in controlling their own bodies, to take the lives of pre-born human beings. If the Constitution contains such a right, must it not necessarily include the less draconian right of each of us to determine whether to terminate our own lives?”

Ed Cognoski responds:

In a word, no. The implied assumption is that a fetus is a person, with rights equal to all other persons. That's a religious conclusion. It is (currently) not a legal conclusion. Getting the courts to recognize the personhood of fetuses is the Right's big challenge. In the meantime, it's possible to recognize a right to abortion without recognizing a right to suicide.

“After Jan. 22, 1973, Americans had good reason to think that the court might use assertions of privacy rights to invalidate laws against suicide, drug abuse, polygamy, gambling, adult incest, prostitution and perhaps even hazardous working conditions. (It's my own business to assume risk.)”

Getting the courts to continue to recognize a Constitutional right to privacy is the Left's big challenge. If that right is extended to these so-called victimless crimes, the right to privacy would be that much more secure. The only "victim" in these crimes is the person committing the act. If one's political philosophy favors personal freedom and liberty and defense of individual rights against encroachment by the state, then extending the right to privacy to cover these acts as well is the right thing to do. With the hotly disputed assumption that a fetus is not a person, abortion could be lumped with suicide, gambling, etc., as a victimless crime, all protected equally by the Constitution's implied right to privacy.

Two heavyweight legal principles are colliding: the (weakly) recognized Constitutional right to privacy versus the (so far) unrecognized personhood of the fetus. The Supreme Court is divided. So, it sidestepped the issues and decided Gonzales vs. Oregon on narrow grounds. The larger issues stay unresolved until at least the next round.