So we return to the stagnation brought on by an overzealous Supreme Court that invented a right to abortion “before a consensus in favor of liberalization had an opportunity to crystallize.” So now, more states, not less, follow the model that makes abortion legal only to save the mother's life. Texas still represents the majority that follows the old-fashioned model; and the Constitution does not give a great deal of evidence to support a right to terminate pregnancies.
Rosen next argues for precedent. The right to contract is secured through Lochner and Meyer v Nebraska but using this idea would mean that a child is a social contract that can be rendered null and void not only during pregnancy but also during any step of the child's life. This would violate the Equal Protection Clause.
The right to marriage is also guaranteed but that right does not imply that children can be raised as the parents see fit. State police power determined that states have the ability to restrict the categories of people being married. This would imply that the state also has a say over the progeny of marriage unions. This logical progression, however, finds itself under the eye of the federal government.
The Bill of Rights guarantees freedom of many things for its citizens and would reject such a scenario of state directed child rearing. So perhaps this invalidation would be the allowance for the permission of abortion. This is not in Rosen's paper as he points out that it is not enough to ensure the right of abortion.
Rosen's next attack is on Justice Douglas's support of the unenumerated right to privacy, which Douglas derived from the Fourth Amendment. This is irrelevant because it is not a case of intrusion in the home nor is it about the archaic thought process that criminalizes contraceptives.
He goes on to say that, “It's easy enough, if you are a judge determined to reach a particular destination, to read every constitutional precedent at such a high level of generality that the differences among them evaporate into air.”
This statement embodies his whole argument. You can get to point B from point A easily enough but the logic will not be reproducible if the readers do not share your preconceived opinions. Those who disagree with you will, most likely, feel deceived by your logic.
Rosen dissents against the manner in which the Supreme Court came to its conclusion, not against the idea of abortion. The Equal Protection Clause is the machete that cuts short the most important constitutional debate of our generation.
He feels that the restrictions on abortion do deny women equal liberty and equal rights but that these rights would have already been achieved through the ordinary political process. Because the Supreme Court made a brazen decision and invoked the equal rights stance during a peculiar situation, it hindered the normal course of legislation.
Terri Collett's first argument uses the idea that the laws of Texas and Georgia are recognized by the majority and are constitutionally favorable to keep. This, to use Rosen's word again, is an extremely atavistic outlook. In 1973, the statutes she is referring to are more than a hundred years old.
She then uses the idea of judicial review vs. parliamentary sovereignty and claims that the people are not represented by the presidentially nominated Justices of the Court but by the legislature, the legislature that is not part of this decision.
This becomes more ridiculous by her position as a judge on the case. Throughout her entire opinion, she embraces an outdated outlook in all her points.
She claims that early feminists opposed abortions, which they did, but her model of feminism is extremely out of place in the modern world as modern feminists and post-modern feminists find that abortion is necessary because it removes an undeserved burden on single mothers. Restricting abortions creates the burden of the "double-day" and fathers who do not pay alimony to their children's mothers.
She then goes on to quote a few Suffrage-era feminist leaders who claim that all of this is the fault of the male sex. If the male is the one leaving, then shouldn't a woman be permitted to receiving an abortion due to the fact that she cannot depart the pregnancy like her partner?
Her opinion traps women in a cycle because it leaves women with no options except anger. She also points out several women who have done extraordinary things in the past few years as if that validates that abortion should be immoral. There is no logic whatsoever in her argument.
Her next point is that abortion and contraceptives are a violation of a woman's “sacred temple”, her body. All surgery and medications are arguably violations of both sexes' bodies but I would stake my life on the fact that Justice Collett has had a Tylenol once or twice in her life.
