Leonardo"s Notebook by Mattheus Mei

I have been impressed with the urgency of doing. Knowing is not enough; we must apply. Being willing is not enough; we must do.

Monday, March 03, 2008

Trans-Mississippi debate on Abortion 'Rights'

You'll all remember the debacle over "hot linking" a picture of Hillary Clinton for this post. Well it sparked an interesting debate in my combox between myself and a blogger named Curious Texan (I believe a contributor to Ivory Dome in Texas). On the surface it's about Partial Birth abortion and an assertion that Sen. Barack Obama is in support of Partial Birth Abortion because he sided with Justice Ginsburg's argument of dissent for the ruling in the case Gonzales v. Carhart, as quoted from the New York Times - we moved away from that once it was established that Obama and Ginsberg dissented not because they're in favour of partial birth abortion (an extremely rare form of abortion), but because the law in question made no exception for the health of the woman.

It then moved to Curious Texan posing this question after delineating the past few cases about Partial Birth Abortion (with a few detailed examples of said procedures - be forewarned): "Can you show me where in the 'emanations and penumbra' of the United States Constitution is the right to do this..." and then inserts a description of one particularly gruesome procedure of late term abortion.

My response which I thought to share, since this debate is now going on on the 'back pages' was:

I agree that the events that happened were frightfully tragic! I also agree that such a procedure is indeed repugnant.

Concerning the Carhart case, what was cited as the reason that the doctor performed the late term abortion, was it willy nilly or was the woman in a particular danger. I'm trying to find that much on the back ground case but am unable to do so.

You mention that the USSC previously strung together a series of opinions to create the right to privacy which was not explicitly enumerated in the Constitution. You ask about the emanations and penumbra of the United States Constitution that would allow such acts based on a created right.

I'm not a lawyer - but I do recall that the Supreme Court in the very first two cases ever decided defined its authority as Supreme Interpreter of the Constitution. From Wikipedia the Supreme Court:

declared [itself] to be the supreme arbiter of the Constitution (see Marbury v. Madison) and made a number of important rulings which gave shape and substance to the constitutional balance of power between the federal government (referred to at the time as the "general" government) and the states. In Martin v. Hunter's Lessee, the Court ruled that it had the power to correct interpretations of the federal Constitution made by state supreme courts. Both Marbury and Martin confirmed that the Supreme Court was the body entrusted with maintaining the consistent and orderly development of federal law.

If I may, the key words in that emboldened section "maintaining the consistent and orderly development of federal law is the clencher - The Court uses Judicial Precedent as the means of fulfilling that self appointed self defined obligation of the USSC, which subsequently and consequently is why the court uses such prior cases that develop the argument to privacy within the constitution. (But that's not to say that the court doesn't go against precident, otherwise African Americans might still suffer under Jim Crow, or even be slaves)

Essentially then the Law is not something static (Thank the Heavens! I'm sure you'll agree) but rather is organic. And as disparaging as it sounds, it's always important to remember that Justice is Blind which for right or wrong, good or bad doesn't always mean fair.
Any thoughts, does this flesh out those 'emanations and penumbra' of the United States Constitution? Or am I missing something?

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