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Katie Couric may understand that a right to privacy is "the cornerstone" of Roe v. Wade, but since Sarah Palin's answer that she believes there is an "inherent" right to privacy in the Constitution, Ramesh Ponnuru moved the goalposts.
While I sympathize with Ponnoru's conclusion that the Constitution protects privacy (as do many liberal legal scholars) the Constitution doesn't explicitly mention a right to privacy, which is why originalists say it doesn't exist. Since the founding father's didn't write it in explicitly, that must mean they didn't mean for it to be there. If you conclude that there IS right to privacy in the Constitution, the legal argument against abortion changes entirely.
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. That said, conservatives have been trying to work around the "right to privacy" for some time now. Kathryn Jean Lopez posted a letter noting that Alito and Roberts both said they believed in a "right to privacy." Clarence Thomas' opinion in Sternberg v. Carhart reveals why this isn't inconsistent with a right to privacy, according to conservatives:
--A. Serwer
Palin, meanwhile, is asked a somewhat oddly phrased question by Couric, 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.Well actually I agree with Ponnoru there is a right to privacy. Except I'm not an originalist, first because I don't have a Ouija Board that allows me to communicate with the ghosts of the founding fathers, and second because originalism holds that liberals "invented" the right to privacy to protect a constitutional right to abortion. Originalism, according to Antonin Scalia, means what "the words mean to the people who ratified the Bill of Rights or who ratified the Constitution."
While I sympathize with Ponnoru's conclusion that the Constitution protects privacy (as do many liberal legal scholars) the Constitution doesn't explicitly mention a right to privacy, which is why originalists say it doesn't exist. Since the founding father's didn't write it in explicitly, that must mean they didn't mean for it to be there. If you conclude that there IS right to privacy in the Constitution, the legal argument against abortion changes entirely.
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. That said, conservatives have been trying to work around the "right to privacy" for some time now. Kathryn Jean Lopez posted a letter noting that Alito and Roberts both said they believed in a "right to privacy." Clarence Thomas' opinion in Sternberg v. Carhart reveals why this isn't inconsistent with a right to privacy, according to conservatives:
Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on one’s view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so.So even if the Constitution protects a right to privacy, that doesn't mean you have a right to privacy if you're a woman who wants to have an abortion, because abortion is a "unique act." You might just conclude that opposition to abortion has absolutely nothing to do with originalism at all. Which is why, I suppose, conservatives don't have a problem with Palin stating a non-originalist point of view on abortion, since the important thing is that she's opposed to abortion, not that she understands the legal reasoning behind opposing it.
--A. Serwer
