This is scary. And the headline is not an exaggeration.
Yesterday we posted some of the responses by candidates to the Cincinnati Right to Life survey. The answer to one question by Justices French and Kennedy – who are seeking re-election to the Ohio Supreme Court – really stood out.
The question from is:
In Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court recognized a “right to privacy” under the Constitution that includes abortion. The Constitution does not include this right.
Justice French responded, “I am unable to take a position on this issue.”
Justice Kennedy responded, “Agree”
To understand the problems with these answers, we need to discuss a bit of legal history. Hang with us; we promise not to get to legalistic.
The “right to privacy” means, essentially, that there is a realm of personal liberty which the government may not enter. The entire premise of the Right to Life question is flawed because the Supreme Court did not recognize a “right to privacy” in Roe. Rather, a “right to privacy” has long been ingrained in American constitutional jurisprudence, and is central to understanding a lot of the decisions defining basic liberties we take for granted.
Way back in 1927, Justices Brandeis and Holmes explained, “all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.”
Since that time, the right to privacy, as an aspect of the general concept of “liberty,” has been key to a number of pre-Roe cases. Some key examples:
In Loving v. Virginia, 388 U.S. 1, 12 (1967) , the Supreme Court declared that laws banning interracial marriage were illegal. The Court explained that these laws violated a fundamental liberty interest: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
In Griswold v. Connecticut, 381 U.S. 479, 481-482 (1965), the Court held that the Constitution does not permit a state to forbid a married couple to use contraceptives. In reaching this decision, the Court recognized that there is a “zone of privacy created by several fundamental constitutional guarantees.”
Justice O’Connor, in Casey v. Planned Parenthood, 505 U.S. 833 (1992), the decision that re-affirmed Roe, explained this right to privacy best: “the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.”
Getting back to Justices Kennedy and French.
With regards to Justice French, her refusal to state a position is not adequate judicial restraint but, rather, is disturbing. These decisions have been the law of the land since before many of us were born. As a Justice who swore an oath to follow the Constitution, she is bound to follow the decisions of the United States Supreme Court on this issue.
Justice Kennedy’s position is downright scary. She outright rejects the existence of such a right despite this long history and controlling precedent.
By failing to accept that the Constitution includes a right to privacy, Justices French and O’Connor are suggesting that the Constitution does not protect personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
Let’s make it more specific.
If Justices French and Kennedy believe that the Constitution does not contain a right to privacy, then they must believe that many of the pre-Roe decisions that relied on this right were not correct.
So in the Loving case they would have voted to uphold the ban on inter-racial marriage. And in Griswold they would have voted to uphold the ban on contraceptives.
So how about some honest re-election slogans:
Vote for French. “She will bring back the ban on inter-racial marriage.”
A Vote for Kennedy is a Vote to Ban Contraceptives.