From: smezias@rnd.GBA.NYU.EDU (Stephen J. Mezias)
Newsgroups: talk.abortion
Subject: Re: Equal protection dead end? 1.
Date: 20 Dec 92 14:47:17 GMT
Organization: NYU Stern School of Business

In article <1992Dec19.215456.16869@rotag.mi.org> kevin@rotag.mi.org
(Kevin Darcy) writes: 

>Word for word, eh? Please point out the part where I condescendingly 
>"recommended" that you read up on the subject matter?

Your claim that you are familiar with critical legal theory is belied
by your positions.  You may have read it, you seem to either not
believe or not have absorbed the fundamental points.

>It's not that it's just absent from the Constitution, Stephen, it's also
>lacking from the INTERPRETATION of the Constitution, i.e. precedents of
>Constitutional Law. You claim that it is "widely recognized". What 
>Constitutional Law scholars have recognized it? What Supreme Court opinions
>have affirmed it? Here's a counter-example, from RvW:
>
>	In fact, it is not clear to us that the claim asserted by some
>	amici that one has an unlimited right to do with one's body as one 
>	pleases bears a close relationship to the right of privacy previously 
>	articulated in the Court's decisions.  The Court has refused to 
>	recognize an unlimited right of this kind in the past. Jacobson v. 
>	Massachusetts (1905) (vaccination); Buck v. Bell (1927) (sterilization)

Where did I ever say the right to bodily autonomy was unlimited?
Answer: I did not.  Is it a basis for legal discussion?  Yes, as your
counterexample shows.  I have been consistent in asking those who
support legal restrictions on abortion to explain why they support
such a restriction on this right.  I have asked them to explain why a
mother can refuse to donate bodily resources to save the life of her 5
year old, but they want to force her to do the same for a /z/e/f/?

>I am not claiming that they "reject" BA, Stephen. I am claiming that they
>fail to recognize it. You are asking me to prove a negative. Why don't you
>prove your _positive_ claim that BA is "widely recognized"? 

You have shown that they do not recognize an unlimited right.  The
right to free speech has limits as well.  What have your proven?

>As for defining the "clique", why don't we say, any scholar who has published
>a work dealing primarily with Constitutional Law, which is or has been required
>reading in at least one of the top 10 law schools by reputation, or any 
>federal judge who adjudicates matters of Constitutionality.

As your own example proves, amici in RvW argued for BA.

>Huh? Have you lost track of the discussion, Stephen? My point is that just
>because someone doesn't think something is legally VALID doesn't mean they
>don't believe in it personally. Lots of people believe that God exists, for
>example, but they would strenuously oppose any attempt to pass a law that
>declared the existence of God. Therefore, just because I recognize that BA
>is not a legally-recognized "fundamental right", in Constitutional terms,
>doesn't mean I believe in BA any more or less than you do.

You seem to have lost track of the discussion.  Would a law limiting
the right to eat Rocky Road survive a constitutional challenge?  I
think the answer is clearly no.  This despite the fact that it is not
specifically enumerated in the Constitution.  If you want to claim
that you believe in BA as `much as I do,' I'll happily concede the
point.  You also incessantly argue that you support a woman's right to
choose as much as anyone on the net.  I stay out of those arguments as
well.  Maybe your intention is to be a gadfly, but in your
`enthusiastic' support for BA and a woman's right to choose, people
often interpret you as being less than enthusiastic.  What do you
think causes this?

>The LEGAL right, Stephen. I agree that there is a MORAL right to BA, but
>I have yet to see proof that this MORAL right has any legal validity at a
>Constitutional level.

Again, you claim to have read critical legal theory and yet your
argument is in direct opposition to it.  Rights are socially
constructed: Legal validity and, perhaps even more importantly the
potential for increased protection, is thus indicated by the support
for James Stockdale's argument about a woman's body.

>Let's see your proof that BA is "widely recognized" as a Constitutional 
>right. Then we'll talk further...

Again you belie either your reading of or agreement with critical
legal theory: The constitution, while a strong indicator of wide
support within a polity for a particular socially constructed right,
is neither the sole nor absolute arbiter of that right.

SJM

Newsgroups: talk.abortion