Wednesday, February 16, 2011

Did the legislature (inadvertenly) guarantee a woman's right to choose?

Like gravity, Karma is so basic we often don't even notice it.  ~Sakyong Mipham
BULLETIN: Yesterday the House passed Senate Joint Resolution 2 by a vote of 49-11. The bill proposes an amendment to the Wyoming Constitution largely based on FOX News talking points about what they fondly call Obamacare. It is seldom a good idea to amend constitutions on a whim, especially a partisan whim. SJR 2 may prove to be a case in point.
Charles Edward Rice is a conservative American legal scholar and theologian. Rice is best known for his career at the Notre Dame Law School. He was instrumental in founding the Conservative Party of New York in the 1960s. Rice thought conservatives believed, When it is not necessary to amend the Constitution, it is necessary not to amend the Constitution.”
Constitutional language has a way of being interpreted over time in ways the initial drafters don’t imagine. Take Roe v. Wade, the controversial 1973 decision of the US Supreme Court recognizing a woman’s right to choose an abortion. The Court interpreted the due process clause in the Fourteenth Amendment to the United States Constitution to protect, what the Justices called, “a right to privacy.” Right to Life advocates have argued unsuccessfully ever since that the Court made that up out of thin air. It is actually their role under the Constitution to interpret laws passed by the legislature.
That is what courts do in our system. When a citizen brings a case to the Court, it does its best to decide the case on the basis of language in the Constitution and a trail of the vapor from previous decisions, i.e. precedent. Some people call that “judicial activism.” Our system calls it their job.
That brings me full circle back to SJR2. In its zeal to insult the efforts of the President to reform healthcare, the legislature has enacted language that may well become the hallmark for judicial decisions upholding the right of a woman to choose an abortion. Consider this language included in the bill they passed yesterday.
“Article 1, Section 38. Right of health care access.

(a)  Each competent adult shall have the right to make his or her own health care decisions.”

I don’t know about you, but I think even a first year law student could make the case that a new provision to the state constitution expressly protecting “the right” of each competent adult” to “make his or her own health care decisions” is a lot stronger case for choice than the due process clause in the Fourteenth Amendment to the United States Constitution.

Could it be that Karma just collided with dogma?

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