December 02, 2005

The Untouchable Right

One of the best points in yesterday's abortion column by George Will is easily missed in the second half of the following sentence:
"In the polarized post-Roe politics, many Democrats are now poised to oppose the confirmation of Sam Alito on the grounds that abortion rights, unlike all other rights (to free speech, private property, etc.), must be utterly unrestricted." (emphasis added)
It is worth noting that many of the other constitutional rights, on which greater restrictions are permitted, are explicitly found in the Constitution. Whatever you might think of the right to abortion first set forth in Roe v. Wade, it was found in the Constitution's penumbras rather than in its actual text. That makes the special untouchable nature of this right all the more inexplicable.

Consider the irony that the courts allow substantive burdens on the right to free speech, a right that is found explicitly in the First Amendment and is arguably the most important of all constitutional rights. For example, speech can be punished where it creates a hostile environment for minorities or women or threatens substantially disruption in a school. In contrast, the only restrictions that are allowed on abortion rights are procedural, such as requirements for parental notification or performance by a licensed physician.

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