Kevin Drum, responding to my statement that, "In my view, if there's a constitutional right to privacy, you can't take away someone's right to have an abortion, anymore than you can take away someone's right to bear arms:"
In fairness, I really don't think this is true. The Fourth Amendment protects you against the police busting into your home without a warrant, but that doesn't mean it's OK to murder your kids as long as you do it in your living room. If Roe v. Wade were overturned, states could almost certainly declare that human life begins at conception and then outlaw abortion as murder regardless of any constitutional or statutory doctrine on privacy.
The reason I said "in my view" is because I think conservatives have a perfectly reasonable argument here that abortion is a "unique" circumstance in which the right to privacy doesn't apply. Clarence Thomas has been making that argument. But my point is that acknowledging a right to privacy completely contradicts originalism as it has been put forth by Antonin Scalia (as well as "originalist" Thomas), namely that there is no right to privacy in the Constitution.
Conservatives can't claim that the right to privacy exists and at the same time claim to be originalists. That's why I say Ramesh Ponnuru was moving the goalposts, because there is simply no way to argue that the right to privacy is "originalist," even though you can agree in theory with a right to privacy and still argue against abortion. I just think you'd be wrong.
As Scott Lemieux pointed out this constitutional right to privacy has meant the right to have an abortion in the past, (even most conservatives to some degree must believe that the two are synonymous, since they've spent years arguing against a right to privacy in the Constitution for just that reason) and it is a perilous if not impossible argument to make that states can pick and choose which constitutional rights they choose to protect.
The fundamental argument, regardless of "originalism," will continue to be over the idea that a fetus is entitled to the same rights as the kids in Drum's example.
--A. Serwer
