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Keller: Supreme Court Overturning Roe V. Wade Would Show How Abortion Rights Have Become 'Grotesquely Politicized'

BOSTON (CBS) - The reportedly-imminent Supreme Court opinion overturning the Roe v. Wade guarantee of abortion rights (per a draft opinion apparently leaked to POLITICO) can and will be characterized in many ways in the coming days.

But the one thing it can't accurately be called is "conservative."

To understand why, take a few minutes to read the 7-2 Court decision from 1973.

"The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy," wrote Justice Harry Blackmun (a Nixon appointee). "Appellant would discover this right in the concept of personal 'liberty' embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras."

Privacy rights as protection for the individual from the power of the state are a cornerstone of traditional conservatism, which also emphasizes the importance of tradition. And the Roe v. Wade decision notes the ambiguity of traditional legal approaches to abortion rights.

For instance, on the question of when life begins the court observed that there had been a range of answers through time, and that a "loose consensus evolved in early English law that these events occurred at some point between conception and live birth. This was 'mediate animation.' Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation."

Imagine that – twice as long for a female fetus to become a living thing.

And the Court made short work of the notion that legal abortion was some sort of absolute novelty.

"In 1828, New York enacted legislation that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened [inanimate] fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it 'shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.'… It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy."

The Roe case was brought in large part to assure the safety of women seeking abortions, and the Court found this well within the scope of legal tradition: "The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient."

And while modern day abortion-rights opponents routinely mock the Court's invocation of privacy rights, they do so in defiance of historical tradition.

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution," wrote Blackmun.

"The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation."

Privacy and the sanctity of individual rights against the power of the state. Respect for historical and legal tradition. This is the blueprint for what conservatism used to mean. And as recently as the mid-1980s, there was bipartisan support for Roe.

But not anymore.

Abortion rights, like so many other issues in the "modern" era, has become grotesquely politicized, just like another once-accepted public health standard, the right of the state to require vaccinations.

And as we head into a full-boil season of fury on both sides of the abortion rights debate, consider how wobbly our common pledge of allegiance to the flag – "with liberty and justice for all" – now seems.

"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," wrote Blackmun, quoting a predecessor, Justice John Marshall Harlan.

"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 . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

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