Oh What a Tangled Web They Weaved When They Forced Them to Conceive.

Kevin Drum is Puzzled. He writes "I listened to a few minutes of the Alito hearing this morning and I heard Alito say that he thought Griswold v. Connecticut, the landmark privacy case, was correctly decided. But of course he won't tell us whether he thinks Roe v. Wade was correctly decided. Why not?"

Now we all know that the real answer is that Alito wants to overturn Roe vs Wade but doesn't want to admit it, because he knows that will, to say the least, hurt his chances of getting on the court. On the other hand, even the hint of a possibility that Supreme Court Justice Alito will allow some state legislature to ban contraception would doom him.

To me the interesting thing is the intellectual challenge of accepting Griswold vs Connecticut and questioning Roe vs Wade. By itself Roe vs Wade has always struck me as judicial activism gone wild. The 4th amendment was the smugglers' revenge against George III. The founding fathers clearly did not have abortion in mind. Also, without hemmings and hawings, we have to admit that they were clueless about contraception and had only a very vague idea about how they had become fathers, that is didn't have a modern conception of conception.

I think the original sin in this case belongs to the idiot legislators of Connecticut who were to lazy or reactionary to remove the absurd ban on contraception. The Court was thus faced with an appalling law which was, however, not specifically banned by the constitution. They couldn't really accept a ban on contraception, so they had to give an biological reading to the 4th amendment. Now I think there should be a right to privacy in the Constitution, so I don't mind, but once the Supreme Court begins to read biology into the constitution it has to decide where to draw the line. That is, once a Constitutional right to contraception is discovered, it becomes necessary to distinguish contraception from infanticide.

Now different people draw the line everywhere from conception to birth. The first Choice would require overturning Griswolf vs Connecticut, since contraceptives protected by Griswold vs Connecticut function by preventing implantation. This leaves a range from implantation to birth. There doesn't seem to be any way to argue that it is judicial activism to draw the line at viability but not judicial activism to draw the line at implantation or (shudder) birth.

We really can't accept a ban on contraception. Elected bodies did their job so badly that the court had to read reproductive biology into the Constitution. Once one accepts that the consitution regulates possible regulations of reproduction, I see no way to dismiss Roe vs Wade as any more activist than any other possible decision.