The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Thursday, June 26, 2003
Reading Justice Scalia's dissent in Lawrence v. Texas, decided today, brought back memories of the time when, in a constitutional law class, I gagged over what Scalia deliciously calls the "sweet mystery of life" passage in Planned Parenthood v. Casey -- the one that reads, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." (The Court then went on to hold that the decision to define one's own concept of existence to deny the separate existence of a human fetus, and express that definition by destroying it, was a fundamental constitutional right.)

Bullfeathers. First, my own present view of the abortion issue is that it ought to be legal (though it is not required to be so under the Constitution) for all purposes early in pregnancy, but the more developed the fetus, the more serious must be the reason for abortion. If 'twere done, in other words, 'twas best 'twere done quickly. Once you start having to break bones, cause pain, and extinguish rudimentary human consciousness (i.e. after a few weeks of pregnancy), you ought to have a damned good reason for it.

Flakiness -- as in when a person is in denial over the pregnancy and waits forever to do something about it -- doesn't cut it. We don't excuse flakiness in other contexts. Negligence law routinely bankrupts people, not on the basis of any malice on their part, but because they failed to fulfill duties expected of them. Why should a woman who panics and leaves the scene of a fatal car accident (hardly less stressful a situation than an unplanned pregnancy) be thrown in jail, while flakiness in the abortion context has to be coddled? (This, of course, doesn't apply to later-term abortions because of health dangers that don't immediately appear.)

Anyway, I digress. The point is that even if the right to define existence is at the heart of liberty, it does not follow that any particular action can be justified by the recognition of that right. I may have the right to define existence, as Descartes did, as a function of thought -- "I think, therefore I am" -- and then conclude that the less a person thinks, the less his existence needs to be recognized. And then I might conclude that a person who leads a "lesser" existence, in terms of the extent of his consciousness, or thought -- infants, Alzheimer's patients, Pacifica Radio listeners -- may be disregarded, or dispensed with, more readily than people with more advanced consciousness and therefore (according to this definition of "existence") more advanced existence.

I would be completely within my rights to think this way (and completely wrong). But that doesn't translate into my right to act based on this thinking. I can't track down a poster on and whack him for his kidneys because since he doesn't cogito as well, he doesn't sum as much. (Yes, that's incorrect, but if I used the correct Latin mood, even if I knew it, nobody would catch the reference except for a couple of NRO guys.)

When I first read Casey, it added yet another sun-bleached brick to the towering ziggurat of my conviction (cool 'phor, huh?) that with the exception of a couple of justices who actually analyze the law and try to apply its meanings (and are routinely despised for it), the average Supreme Court justice is a politician, not a judge. They start with the end in mind. Their opinions are not analysis of the law, but nothing more than plaster to coat the studs and chicken wire of their predetermined decisions. {/metaphor generator}


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