This is a complex subject, so I will defer to an excellent piece of new scholarship to set the tone to the latest and greatest technology in understanding the constitution, and how both sides of the "abortion debate," are both technically right, but that whichever view eventually prevails (with full acknowledgment that statutes on the books state a woman has a right to choose) both sides have a right to be heard, as per the 1st Amendment.
"Abortion and Original Meaning
JACK M. BALKIN
Yale University - Law School
Yale Law School, Public Law Working Paper No. 128
Constitutional Commentary, Vol. 24, No. 101, 2007
Abstract:
This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.
Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.
The article applies this method to the most contentious constitutional issue of our generation - the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.
The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.
[This article will appear in 24 Constitutional Commentary (2007). A response to critics, expanding on the some of the key ideas of the article, appears in Original Meaning and Constitutional Redemption, 24 Constitutional Commentary (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=987060]"
Read the full text and see how he demonstrates how such bastions of the Right, as Scalia, are admitted "faint-hearted originalist," working from a theory that is flawed.
In other words, like all aspects of human society, we believe judges, as humans, must make a full attempt to interpret the constitution yet stay within their part of the balance of powers using the best Technology available to them, in order to ADHERE TO THE PRIME CONCEPTS ENSHRINED IN OUR BUNDLE OF RIGHTS AND THE BALANCES OF POWERS.
For those who would use the Constitution to outlaw Abortion or Homosexuality, we STRONGLY DISAGREE that this is the equation of human liberty set in motion by our founders.
Unfortunately, for those of us who may indeed believe that if it was our own physical womb which was holding a fertilized ovum that we would personally protect and defend that little critter with our life, it is clear that that homunculus doesn't pass the 5th Amendment or other tests of personage enshrined in the Constitution or Bill of Rights, for instance, as Balkin states, "It is hard to see how a fetus could be compelled to testify against anyone, much less against itself."
Scientific reason thus permits us to simultaneously imagine that the fetus may indeed be very valuable to society, the family it will be born into, etc., and yet comprehend why the fetus doesn't have (for instance) Miranda, or any other Rights. It is the mother who would be robbing a bank, be arrested, and required to be Mirandized (another example).
The brilliance of this argument isn't so much that we "love" abortions, in fact we would hope prudence and civil progress would create access to contraception, prevention, and abstinence using a scientific and reasonable basis. Further, that we believe Education (not just sex education, but science, math, sports, etc.) is one of the best contraceptives available.
No, the brilliance of this argument is that all the judges whose words are "final," at least until someone more brilliant, or a situation more enlightening occurs, are only human and thus limited by the technology of the day. That is why our "framers" developed a Constitution which contains an organized intrapreneurial methodology for the social revolts they knew, scientifically, were a regular part of human government.
Could you imagine if all our damn lawyers would focus their energy on constructive progression of the Science of Law, instead of frivolous lawsuits?
We are neither "originalist," nor "constitutionalists," rather we seek reason and wisdom which protects the principals of established constitutional and case law. We believe Congress or the Executive must be restrained from burdening the people and the Judiciary is that protection in the Balance of Powers. We believe in the enshrinement of our bundle of rights, and finally that all these laws and rights must be translated into plain English for common reference and daily use-- otherwise, at the rate we are going, we will end up a nation of lawyers.
