Thursday, February 09, 2023

Roe and State-created Unenumerated Rights

Can Roe v. Wade be viewed as a decision in which the Court refused to recognize a state-created unenumerated right--the right to life of unborn persons--under the 9th Amendment? In other words, some view Roe as a case in which the Court refused to follow a 9th Amendment "unenumerated" right because it conflicted with the Justices' own idea of a "fundamental" Substantive Due Process right to abortion.

Which unenumerated rights are the legitimate ones? Who decides? And how do they know?

How did the Court know that Texas' interest in protecting the right to life of living human beings in the womb became compelling only when the "potential life" becomes "viable?"

Is the viability rule a little like Catch 22 in the sense that the state's interest in protecting an unborn human life in the womb becomes compelling only after the child no longer needs to be protected in the womb (because he or she has reached the point of viability, the point at which it could survive outside the womb)?

What does it mean to say that a living, unborn child is only a "potential life?" Does it mean that the unborn child is not alive? Not human?

Be sure to watch for the "masks" of the law as you read Roe and Casey.

A potential (future) X must in the present be an actual Y? What does science teach about whether the unborn offspring of two human beings is both alive and human? If an unborn child is both alive and human, is it accurate to refer to him or her as only a "potential life?"

These are the kinds of questions that haunt me when I re-read Roe for maybe the 1000th time.

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