Tuesday, August 31, 2010

Liberal victory week continues:
Reproductive rights


In 1879, the state of Connecticut passed a law banning the sale of any drug or device used for the purpose of preventing conception. It was on the books for decades and nearly never enforced until the 1960s when The Pill was invented. Doctors tried suing on behalf of their patients, but the courts said the doctors lacked standing to sue. In a 1961 case Poe v. Ullman, the court decided not to hear the case, but Justice Harlan dissented. The most famous quote from his dissent is as follows.

"...the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

A few years later, Estelle Griswold of Connecticut Planned Parenthood and Dr. C. Lee Buxton of Yale opened a clinic in New Haven to test the law once again. They were arrested, tried and found guilty and fined $100 each. Clearly, they now had standing and the case went to the Supreme Court, who struck down the statute. In the 7-2 ruling, even those who dissented called the Connecticut law "uncommonly silly". Griswold established the right of married couples to buy contraceptives in Connecticut. A 1972 ruling in Eisenstadt v. Baird gave the same rights to unmarried couples, using 14th Amendment rights of equal protection under the law.

Conservative scholars hate Griswold, and point to it as judicial activism. When you listen to our new army of "strict constitutional constructionalists" who listen to Glenn Beck and other ignorant pinheads, it's clear they think the government isn't allowed to do much of anything, using convoluted logic that makes the establishment of the right to privacy look pristine and direct in comparison.

We see in the Park 51 controversy the true colors of these sons and daughters of liberty. They accept the rights of others, but they want those rights to be trumped if any uninvolved party takes offense to the exercise of those rights. They want a weak and toothless government until such time as they want to use government to abrogate the rights of people to whom conservatives object. They claim to love liberty, but they keep courting bigotry and intolerance, hoarding liberty for themselves and denying it to people who aren't "real Americans".

They won't go away easily; they may never go away completely. But it's obvious who believes in the rights of all citizens and who believes those rights only belong to people the easily aroused mob finds unobjectionable.

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