Abortion Is A Constitutionally Guaranteed Right That Should Be Decided By the States

That’s essentially what Sarah Palin told Katie Couric on the last segment (please God!) of Couric’s series of interviews with MooseWoman (after which she responded to Couric’s follow-up question about other Supreme Court cases with a blank stare and a stammering non-answer; i.e., she doesn’t know any other Supreme Court cases).

The same video showed a snip from Couric’s interview with Joe Biden in which she asked the same two questions she asked Palin: “Why do you think Roe v. Wade was a good [changed to “bad” for Palin] decision?” and “Are there Supreme Court decisions you disagree with?” Here are Biden’s answers to those questions (Palin’s are quoted separately after Biden’s):

Katie Couric: Why do you think Roe v. Wade was a good decision?

Joe Biden: Because it’s as close to a consensus that can exist in a society as heterogeneous as ours. What does it say? It says in the first three months that decision should be left to the woman. And the second three months, where Roe v. Wade says, well then the state, the government has a role, along with the women’s health, they have a right to have some impact on that. And the third three months they say the weight of the government’s input is on the fetus being carried.

And so that’s sort of reflected as close as anybody is ever going to get in this heterogeneous, this multicultural society of religious people as to some sort of, not consensus, but as close it gets.

I think the liberty clause of the 14th Amendment … offers a right to privacy. Now that’s one of the big debates that I have with my conservative scholar friends, that they say, you know, unless a right is enumerated – unless it’s actually, unless [it] uses the word “privacy” in the Constitution – then no such “constitutional right” exists. Well, I think people have an inherent right.

Couric: Are there Supreme Court decisions you disagree with?

Biden: You know, I’m the guy who wrote the Violence Against Women Act. And I said that every woman in America, if they are beaten and abused by a man, should be able to take that person to court – meaning you should be able to go to federal court and sue in federal court the man who abused you if you can prove that abuse. But they said, “No, that a woman, there’s no federal jurisdiction.” And I held, they acknowledged, I held about 1,000 hours of hearings proving that there’s an effect in interstate commerce.

Women who are abused and beaten and beaten are women who are not able to be in the work force. And the Supreme Court said, “Well, there is an impact on commerce, but this is federalizing a private crime and we’re not going to allow it.” I think the Supreme Court was wrong about that decision.

Couric Why, in your view, is Roe v. Wade a bad decision?

Sarah Palin: I think it should be a states’ issue not a federal government-mandated, mandating yes or no on such an important issue. I’m, in that sense, a federalist, where I believe that states should have more say in the laws of their lands and individual areas. Now, foundationally, also, though, it’s no secret that I’m pro-life that I believe in a culture of life is very important for this country. Personally that’s what I would like to see, um, further embraced by America.

Couric: Do you think there’s an inherent right to privacy in the Constitution?

Palin: I do. Yeah, I do.

Couric: The cornerstone of Roe v. Wade.

Palin: I do. And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.

Couric: What other Supreme Court decisions do you disagree with?

Palin: Well, let’s see. There’s, of course in the great history of America there have been rulings, that’s never going to be absolute consensus by every American. And there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So you know, going through the history of America, there would be others but …

Couric: Can you think of any?

Palin: Well, I could think of … any again, that could be best dealt with on a more local level. Maybe I would take issue with. But, you know, as mayor, and then as governor and even as a vice president, if I’m so privileged to serve, wouldn’t be in a position of changing those things but in supporting the law of the land as it reads today.

Ramesh Ponnuru, one of the razor-sharp minds over at The Corner, finds Biden’s comments more troubling than Palin’s:

Those excerpts from Couric’s interviews give me more concerns about Biden than Palin. He seems to be under the impression that there’s a “liberty clause” in the Fourteenth Amendment (he has talked about it in Supreme Court confirmation hearings too). He misdescribes what Roe held. He seems to believe that Roe has been good for social peace and that this alleged fact justifies it as constitutional law.

Palin, meanwhile, is asked a somewhat oddly phrased question by Couric [It’s the same question, phrased the same way, that Couric asked Biden], and says, reasonably enough, that the Constitution protects a right to privacy. Now it is certainly and obviously true that the Constitution protects privacy: What else do the Third and Fourth Amendments protect, for example? There is nothing incompatible with either a pro-life point of view or originalism with saying that the Constitution protects privacy.

No liberty clause in the Fourteenth Amendment? (Emphasis in original.)

Fourteenth Amendment, U.S. Constitution:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]

And yes, courts do in fact refer to it as the “liberty clause” too (just a sampling):

McGhee v. Draper, 639 F.2d 639, 643 (10th Cir. 1981) (“In order to justify relief under [the] liberty clause of the 14th amendment…”).Brady v. Dill, 187 F.3d 104, 119 (1st Cir. 1999) (“The quoted paragraph announces two linked propositions of constitutional law[:] (1) The “liberty” clause of the Fourteenth Amendment.…”).

Davidson v. O’Lone, 752 F.2d 817, 839 (3d Cir. 1984) (“That mode of analysis would enable the state legislatures to deprive the life and liberty clauses of the fourteenth amendment of any real meaning.…”).

Mazaleski v. Treusdell, 562 F.2d 701, 712 (D.C. Cir. 1977) (“In one of its most recent decisions delimiting the scope of the liberty clause of the fourteenth amendment…”).

Manlove v. Town of Hymera, 2002 U.S. Dist. LEXIS 14722, at *9-10 (S.D. Ind.) (“This is just the sort of intimate life decision that is protected by the Fourteenth Amendment’s liberty clause.”)

Ross v. Pa. State Univ., 445 F. Supp. 147, 154-55 (M.D. Pa. 1978) (“[this] does not constitute the kind of injury to reputation entitled to be protected by the liberty clause of the Fourteenth Amendment.”).

Ed Kilgore at The Democratic Strategist (via Publius, in post quoted above), points out that Ponnuru is not understanding the difference between a “protected” right and an “inherent” right:

… Palin was not asked if the Constitution protects any privacy rights. She was asked, in the context of her position that Roe should be overturned, if there was an “inherent right to privacy” in the Constitution, which is about as clear a reference to the Griswold holding as any network interviewer could be expected to make. And Couric made that even clearer by referring to the “right to privacy” as the foundation of Roe. While it is theoretically possible to believe that Griswold was a correct decision while Roe was not, I’ve never heard anyone embracing “the pro-life point of view or originalism” take that position, and I’m quite sure Ponnuru doesn’t, either. And he doesn’t address Palin’s weird and immediate descent into Federalist arguments about how to apply that “inherent right to privacy,” which suggests an unfamiliarity with the Due Process Clause of the Fourteenth Amendment that prohibits state abrogation of constitutionally guaranteed rights.

One of Michelle Malkin’s dim bulb readers suggests an alternate response he wishes Palin had made to Couric’s queries, and Dim Bulb Number One quotes it in her post:

All that said, I like reader David’s suggestion:

Here’s how I wish the Palin-Couric exchange would’ve went:

Couric: Can you name any other Supreme Court decisions you disagree with?

Palin: Off the top of my head, no. Roe v. Wade is clearly the one that stands out above the rest. But the average American out there isn’t worried about whether I can rattle off a bunch of Supreme Court decisions. They are worried about making their mortgage payments, keeping their jobs and sending their kids to college. They trust the Supreme Court to make those decisions. What they want from a President and Vice President is someone who will appoint Federal judges who fairly interpret the Constitution and adjudicate accordingly.

Now, let me ask you a question, Katie. You interviewed Senator Biden recently. So when you asked him this same question, would you care to share with me his answer?

Couric: Well, I didn’t ask him that question.

Palin: You didn’t? Why not? He’s a VP nominee. I’m a VP nominee. Don’t you want to know what Supreme Court decisions he disagrees with? Why are you only interested in my perspective on this?

Couric: …………. (Katie) Crickets chirping…..

Yet a third reader chips in: “It’ll never happen, but that’s the kind of hardball I’d love to see.”

Cheer up, mush for brains — Couric did ask Biden the same question:

Couric: Are there Supreme Court decisions you disagree with?

Biden: You know, I’m the guy who wrote the Violence Against Women Act. And I said that every woman in America, if they are beaten and abused by a man, should be able to take that person to court – meaning you should be able to go to federal court and sue in federal court the man who abused you if you can prove that abuse. But they said, “No, that a woman, there’s no federal jurisdiction.” And I held, they acknowledged, I held about 1,000 hours of hearings proving that there’s an effect in interstate commerce.

Women who are abused and beaten and beaten are women who are not able to be in the work force. And the Supreme Court said, “Well, there is an impact on commerce, but this is federalizing a private crime and we’re not going to allow it.” I think the Supreme Court was wrong about that decision.

These people are so stupid; it’s truly painful.

3 Responses to “Abortion Is A Constitutionally Guaranteed Right That Should Be Decided By the States”

  1. tas says:

    So Couric tried playing Gotcha Journalism! against Biden. Errr, wait a second…

  2. jim escher says:

    Roe is bad law. I am personally in favor of limited access to abortion. But it is wrong that the “right’ has been codified by the Supreme Court. There is no Constitutional right to privacy and that is the basis of the flawed Roe V Wade decision.

    The only way that this issue will cease being the divisive cudgel of our republic is to overturn Roe and return the decision of the availabilty of abortioin back to the several states which is where such issues are supposed to be decided according to the 10th. amendment ot the Constitution. The trouble with the left is that they are afraid to let democracy work on specific issues such as abortion.

    In the state of NY accesss to abortion would not change. But in Utah the citizens there may decide that it is their values the move to prohibit or at least, to limit the availability of the procedure. To the degree that the left in the form of such organizations as NOW and Planned Parenthood do not want to allow the states to decide this issue, this is the extent to whcih they as leftists do not trust the democratic way any thence the right of the people to decide, on a local level, as prescribed by the Constitutioin, whether or not a given state will allow or limit access to abortion.

    The trouble with left groups such as NOW is that at their heart they ar undemocratic groups. They want the courts to impose a fiat on the whole nation that imposes the will of a segment of society on the whole. The genius of our system is that such issues were deliberately to be left to the localities and not to be decided on a national level. Besides, Roe was decided on “principles” that were created out of whole cloth. The politics of the moment dictated the issuance of the Roe V Wade decision not Constitutional principles.

    If the left doesn’t like something will it be satisfied to have any undemocraric method “remedy” what it sees as a problem. Why not just have the president issue order after order requiring the redistribution of wealth or that doctors and nurses be required ti work extra hours in poor clinics without pay for the good of the community. If the Supreme Court can make “law” out of whole cloth on one issue what is to stop it or the executive from doing it on a whole host of other concerns, all in the name of the good of the people

    Does the left want a “benign ” dictatorship that will “remedy” what it sees as society’s ills or is it committed to the procedures that have been laid out by out Consitution? That document provides for the remdies of society’s probelms without resort to coecion which is precisely what Roe V Wade is and why the abortion issues will not go away. In states such as NY and California abortion is safe because the local population is in favor of women having access to the procedure. In more conservative states, perhaps Utah or Idaho, it will be more difficult to obrain an abortion. But that is the price we pay for a federal system. Such a system provides for the localities, in this case, the states, to decide policy on such issues, much to the chagrin of the anti-democratic forces of the left.

    In my view, the left is perfectly happy to allow the democratic process work as long as the result is in theri favor. But if the decision goes against them the left seeks remedy in court fiats and eventually in presidential executive orders. In short, they are at hear anti-democratic and have total contempt for those with whom they disagree. To the left, the overturning of Roe would be turning the clock back. For me, it would be the first bit of sanity that had come over the Supreme Court in over 35 years. The reason that the Court nominations are so contentious is becasue of the bad decsion that is Roe. Once it is overturned then the political process of dealing with the issue can begin, the place where it always belonged. There is simply to wide a view on this issue for a central authority to hand down a decision on the subject.

    Are we a democracy or not? Do we believe in the 10th. amendment to the Consitution or not? It seems to me that the left is at its heart essentially anit-democratic. It seeks to imposwe its will on the whole of the population by judicial fiat, especially in that most radical court the 9th. Circuit, that seems to think that it is the rightful substitue for the will of the people, the legislature. No matter how grave the issue, there is no excuse for the abrogation of the legislative prerogitives or the arogation of power as witnessed by the Supreme Court in the Roe V Wade decision.

  3. Jim Elliott` says:

    “Are we a democracy or not? Do we believe in the 10th. amendment to the Consitution or not? It seems to me that the left is at its heart essentially anit-democratic. It seeks to imposwe its will on the whole of the population by judicial fiat, especially in that most radical court the 9th.”

    In response: No, we are NOT a democracy. We are, in fact, a Representative Republic. Quickly, quote the Pledge of Allegiance – “…and to the Republic for which it stands.” Our forefathers had the wisdom to realize that democracies are doomed to failure because they are ruled by the passion of the mob rather than by law. When the “mob” imposing its will on others, to remove guaranteed rights, rule of law must be utilized to establish balance.

    Democracy cares little for the rights of the minority. The idea that the US is a democracy has been inaccurately promoted by politicians and is a misconception of the masses. We adhere to democratic principles, and we have SOME rights of democracy at work within our government, but we are not a Democracy.

    The left is not imposing its will on the whole of the population. The converse of that is the fact. The right is imposing its will on the whole of the population. The left merely prefers not to have the will of the right imposed on it. No one (in the right or the middle or the left) has to have an abortion, but when choice is removed (by the will of the right) the will of the right is imposed on all. The left is not promoting abortion, merely leaving it to the choice of the individual. The right, on the other hand (pun intended) insists on removing choice from all.

    Sarah Palin forgets that she “chose” not to have an abortion because she was guaranteed the right of choice. She would remove that right from others. To make this a states issue rather than a federal issue would remove rights that are Constitutionally guaranteed. States do not have that power under the Constitution of the Republic of the United States.

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