The Gorsuch hearings have given many head scratching moments. One such, the distinguished Senator from California fairly beseeching the honorable Judge Gorsuch that might he not (pretty please) ascribe the mythical boon of “super-precedent” upon good old Roe v Wade.
I thought his answer to be multilayered; it was politically safe, “it has been upheld many times, ” factually correct and yet possessing of the gentle restraint reserved for the invincibly ignorant.
Clearly Roe is of primary significance to the senator from California. Apparently she does not share the confidence of its precedent as unassailable.
This is one of the many “tells” of liberalism. They assume everyone to be as ideological rigid and hence irrational as they are. They have no confidence in the truth. Perhaps it is because the truth is so rarely on their side. The law operates in a different fashion. The law is, as my father often quoted, “promulgated by reason.” Practice of law demands reason, rationality and logical continuity and the last is what gives precedent such weight. If you writhe in dread of Roe being overturned you either lack any of these attributes the law assumes or you recognize it to be bad law.
Roe v. Wade in its own homage to precedent refers to, Griswold v. Connecticut. A case which held that the state had no business getting involved in the matter of a woman seeking birth control. Privileged privacy of the doctor/patient relationship is a constitutional imperative. It logically followed, as I crudely paraphrase, for the court deciding Roe as the court in Griswold v. Conn. found the privacy in the doctor/patient relationship regarding birth control then the state should have no business interfering between a woman and her abortionist. Doctor/patient privacy is ergo “settled law”. As Judge Gorsuch calmly noted, Roe has “been upheld many times.”
Meanwhile, the House wrangles anew over the fate of the health care act, a most profound interference between a doctor and patient. Recall how it began with its own unwitting homage to Griswold v. Conn. ” If you like your doctor, you can keep your doctor.” Dubbed by Polifact as the lie of the year for 2013.
Clearly as a matter of Supreme Court precedent, it is acknowledged the government has no business interfering between a woman and her doctor.
The ACA, “Obamacare” has stamped a little Uncle Sam on the finger of every doctors rubber glove. To quote H.L. Mencken, ” Democracy is the people knowing what they want and getting it good and hard.” We certainly are. The eyes fairly water.
In this era of eye-rolling gender awareness the privacy of doctor/patient can’t be just for women?
The demands of the law; reason, rationality and logical continuity are, in my humble and admittedly untrained view not being met. Griswold is some great reading. I recommend it here. Griswold either supports Roe with its “penumbra of rights emanating ” or it supports striking down the ACA. The state has no business meddling with a couples birth control. Can the same state then stick its finger in every decision regarding the people and their health care?
The court has stated no wish to be a super legislature. Griswold clearly affirms the rights of privacy and association. Justice Goldberg states in his concurrence:
“The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. [p495] ” The heavy handed strictures of Obamacare are hardly in concert with this sentiment and Constitutional imperative.
I’m for the right to be left alone. The ACA manipulates and usurps the peoples’ rights. As ably expounded upon in Griswold, these rights prove the ACA a mockery of the court. That is some super-duper precedent. It is unfitting the court, this nation and its people and the traditions of liberty we hold dear.
I know, I know, the court has already ruled! The funny thing about the court system is the field is so broad but their focus so narrow. Ask the right question, it is not the job of the court to ask it for you. Here in the conservative, pro-life sphere, so much attention is focused on how horrible Roe v. Wade is. It is bad law, usurping the power of the states and the people, judicial fiat etc. There is an old saying, “it is an ill wind that doesn’t blow somebody some good.”
This particular ill wind could blow away the specter of nationalized healthcare. Such control has no place in a putative free market expressing the choices of a free people. Choice is the thing we are all to be in favor of. Drive a stake through its vampire heart, that would be a precedent worth keeping. Don’t think of it as arguing for Roe, the curtailment of Abortion, following the dictates of science is only a matter of time. That is a hornets nest for another day.
Ask the question. If only we had some vaunted Supreme Court solicitor.