Why International law sucks (Re: Bombing and terrorism

Charles Brown CharlesB at CNCL.ci.detroit.mi.us
Tue May 18 09:17:28 PDT 1999


In my opinion, both Nathan and Wojtek are correct on this point. Part of the confusion is that the 14th Amendment's role here is to apply Due Process to the states. The original Due Process clause is in the 5th Amendment. Before the 14th Amendment, it was not clear that it applied to the several states (only to the Federal Government).

"Due Process" is a very general term, used to encompass a number of legal issues. Nathan is correct that the right to an abortion was derived from a socalled penumbra or shadow of the actual wording of the Amendments. In other words, there are no actual words "right to privacy" , but the Court derived one from the conceptions of freedom from illegal search and seizure and Due Process , which protect from unwarranted government intrusion into an individual's privacy.

The Equal Rights (for women) Amendment failed by one state legislature in the late 1970's. Roe v Wade is not based on the 14th Amendment Equal Protection Clause or equal protection of women.

Charles Brown


>>> Wojtek Sokolowski <sokol at jhu.edu> 05/18/99 11:07AM >>>
At 11:42 PM 5/17/99 -0400, Nathan Newman wrote:
>Actually, abortion rights are based on no particular amendment but a
>declaration by the Court of an "implied" right of privacy, separate from any
>enumerated rights, so it's more on the order of the 9th Amendment, although
>its also implied by the right against search and seizure and even right of
>association.

nathan: I do not mean to split hair, but the last time I read the Roe v Wade decision, it made a specific reference to the 14 amendment. See the attached excerpt from the syllabus:

"3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164. "

(Roe v Wade, 410 U.S. 113; 93 S. Ct. 705; 1973 U.S. LEXIS 159; 35 L. Ed. 2d 147)

But I fully agree with your statement:


>
>Or another way of saying it, the Court decided abortion rights were a good
>thing. Notably, they refused to base the right on gender equality.
>
>But as the debate with Charles implies, the real right to abortion came
>based on the mass mobilization of women that had already forced Ronald
>Reagan to sign a strong abortion rights law as Governor a few years before
>Roe v. Wade. As is common, the Court was ratifying the movement in the
>streets.

wojtek

Dr. S. Wojciech Sokolowski Institute for Policy Studies Johns Hopkins University Baltimore, MD 21218 voice (410) 516-4056 fax (410) 516-8233 email sokol at jhu.edu



More information about the lbo-talk mailing list