The unintended benefit of Roe?
As long as current abortion law is on the books as legalized in the Roe v. Wade decision, it may be providing some new strength to the legal case for conscience protection in health care. Really.
The irony is well elaborated in this opinion piece in LifeNews. Specifically here:
Roe and its successor, Planned Parenthood v. Casey, are perhaps the best known examples of the Court’s use of the concept of “substantive due process” to declare constitutional rights that are not actually written in the Constitution.
The Court has described this analysis as a search for “fundamental rights” that are “deeply rooted in the Nation’s history and traditions.” In Casey, the Court focused less on history and more on personal autonomy and self-definition, finding that the Fourteenth Amendment also protects a person’s right to “define one’s own concept of existence . . . and of the mystery of human life” by choosing whether or not to have an abortion. In short, it is clear that under the Fourteenth Amendment the government cannot compel a woman to abort her own fetus–the question asked here is, can it force her to abort someone else’s?
This is counter-intuitive thinking, as he says. And startling in its logic.
Pro-lifers have long argued that Roe and Casey were wrongly decided, and that the Supreme Court has no business writing new rights into the Constitution. Nevertheless, a close examination of the Court’s stated test yields a surprising result: the right to refuse to perform an abortion actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself. Thus, so long as Roe and Casey remain the law, their reasoning also protects the right of healthcare providers to refuse to participate in abortions.
None of this, of course, resolves the long-running debate about the legitimacy of Roe and Casey themselves. But it does suggest that, so long as those cases are the law of the land, they must be understood to provide a constitutional basis for the rights of the other undisputed constitutional “persons” in the operating room–the healthcare providers. For this reason, in an era of increasing government involvement in healthcare, pro-lifers in search of conscience protection may find that revisiting Roe might be just what the doctor ordered.
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