Being a lawyer in America is weird right now. There are two big movements happening about the Right to Privacy related to medical decisions. What is wild is that these two sides are fighting for the exact same right (legally speaking) but at the same time working hard to erode the other side’s rights. American, what are we doing here?
It’s Constitution Day, and it’s high time everyone really understood how the Constitution affects us every day and why we need to stop fighting to take away each other’s right so we can retain the rights that we care about.
WHAT DOES THE CONSTITUTION DO?
First, in just a few Articles and 27 Amendments, it creates three separate but equal branches of government. Think of this like a triangle. The Executive branch (those who enforce the law – president, governor, mayor, police) are in the bottom left corner. The Legislative branch (Congress, state legislators, local city council who makes the law and controls the money) are in the bottom right corner. At the top of the triangle is the Judicial branch (those who interpret the law – judges, courts and the United States Supreme Court). Finally, imagine that under the triangle is the People. The Executive and Legislative branches are the closest to the People because we elect those branches and the offices are political in nature, whereas the Judicial Branch is mostly appointed and removed from the People so they are not swayed by politics.
Of course the USSCT appointments are political, but because they are lawyers there is an added layer of ethical duty directly tied to their Bar license to serve as an added check and balance. Furthermore, USSCT Justices are appointed for life. So while there are political appointments, they are not motivated to act to be reelected and as we have seen with Chief Justice Roberts for example, they cannot always be boxed into a political side.
The Constitution is also the law of the land – meaning, it is THE LAW and it supersedes any other law that any legislative branch tries to make.
HOW WE FIGURE OUT IF A LAW IS “UNCONSTITUTIONAL” / “ILLEGAL” OR NOT.
Congress, States, Counties, Cities and Towns can make their own laws (and they do all the time) but if any law is contrary to the plain text of the Constitution and/or USSCT interpretation of what the Constitution says, they may be deemed unconstitutional and invalid.
This has happened thousands and thousands of times in our history resulting in some VERY clear USSCT holdings (what the rulings are called) that make it really clear what the law is. Then we have seminal law – the BIG cases that you may know (Brown v. Board of Education, Roe v. Wade). These cases set a precedent for the USSCT because remember, the Court is not the individual justices but one singular body. Throughout its history, it is not in the business of overturning itself (although it has happened on rare and specific occasions.)
IT’S REALLY HARD TO CHANGE SEMINAL USSCT HOLDINGS.
BUT, and this is a big one, the USSCT has to have subject matter jurisdiction in order to determine whether a law is or is not valid. This is complex – so here is a 50+ page explanation of federal SMJ. It is rare for the USSCT to act to stop the enforcement of a law that is likely illegal. The typical route is this – the Legislative branch makes a law that is illegal, the Executive branch enforces the law, and the person against whom the law was enforced files a lawsuit or files a pleading in a lawsuit to say “this is illegal” and the case works its way up to the USSCT.
Let me be clear – Not every case makes it to the USSCT and if a case never makes it, then the created law in question doesn’t change and the prior rulings of the Court cannot be overturned. Also – you have to make the right arguments. Sometimes courts say fun things like “if you had argued XYZ you would have prevailed, but you didn’t say that so you lose.” So having a lawyer that makes the right arguments is very important. But when the case does make it in front of the Court, first they hold oral arguments starting on the first Monday of October when session begins. The Court applies the facts that are established by the lower court and determine if the law complies with THE Law. Some justices take a conservative approach to this and some take a more liberal approach.
I should note that a conservative/liberal justices and a conservative/liberal political view is not the same. When a justice is conservative in their interpretation of the Constitution, it means that they stick to precedent, they stick to the plain meaning of the Constitution and/or they strictly apply the language of the Constitution and they less so interpret and more so read. Liberal justices are most willing to “read between the lines” of this 200+ year old document and consider what is reasonable today. So if Amy Coney Barrett decides to undo nearly 50 years of law when she gets the chance, that would make her a liberal justice although politically conservative.
So if you’re still reading, I’ll bring this full-circle with some actual laws.
SO WHAT DOES THAT MEAN FOR ME TODAY?
The biggest issue that we the People are talking about is freedom of medical choice specifically reproductive rights and vaccines. Guess what – there is a seminal case for that.
When we talk about the rights of privacy to make medical choices, the majority of this case law came from abortion or contraception rights case law wherein women retained the right to control their own reproduction. Specifically in Griswold v. Connecticut, the Court famously stated that while the Constitution does not specifically say you have the right to privacy, the right to privacy (related to your body and medical choice) is in the “penumbras” of the First, Third, Fourth and Ninth Amendments. Meaning – the Court read between the lines. As they should – Americans are all about privacy and when it comes to our life choices, and no right is held more dearly.
Everyone talks about Roe v. Wade, but the bigger, more important case about choice is Planned Parenthood v. Casey. In Roe, the rights of an unborn child were discussed and “viability” became the standard for the rights of the child to supersede the rights of a mother. Basically, Roe said that after 24 weeks a child is unequivocally viable and abortion after that day is illegal because the child has the right to live.
Interestingly, Justice Burger who wrote the opinion wanted to be a doctor. So he took a lot of time to emphasize the science and medical data in the majority opinion. Every lawyer knows that the only thing that will overturn Roe is a case that argues viability is sooner than 24 weeks and then THE law will change, but only to the extent that a child may be viable as early as 23 or 22 weeks. As the mother of a preemie, I am painfully aware of the miracle of science to keep babies born early alive, but even decades later, 24 weeks is very early and just barely viable. Although one micro-preemie survived at 21 weeks and 12 days gestation.
Planned Parenthood v. Casey focuses on the laws that created obstacles to obtaining an abortion that is legal under Roe. Sound familiar? In Casey, the Court held that the government cannot create undue burdens for women (even a minor or a married woman whose husband objected). “[U]ndue burden is… shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
This may be hard for those of you who identify as “pro-life” to accept, but the opposite of pro-choice is not pro-life. That’s a cute moniker that Conservatives developed to justify that what you’ve really been fighting for is a very un-Republican thing – government invasion of privacy and a lack of choice.
So… Now we live in a world with a global pandemic that has affected all parts of our lives, killing more than 600,000 Americans. Our Democratic President has done something very unusual for the Democratic Party – he is constructively taking away the right to choose to get vaccinated or not and invading the privacy of millions of Americans by giving anti-vaxxers an impossible choice – get vaccinated or you will no longer be able to participate in normal society.
Here is the kicker – in order to challenge this mandate, the people who do not want to be vaccinated are not going to have to make arguments that draw off the Casey case and is progeny (cases that follow the same rationale) because one of the rationales from Casey for women to have choice is that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Since the Court has time and again emphasized Equal Protection, you can logically argue that any law that limits any American (male or female) to participate equally in society is not constitutional.
Wait there is more – in recent years, the Court has considered warrantless blood draws in the context of DUIs. Again, Conservatives have worked hard to make it legal to stick a needle in the arm of a person suspected of a crime. In Missouri v. McNeely, the Court held: Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.”
You see, all of this law that conservatives have been fighting for years are the strongest arguments to preserve their own rights to choose. The irony kills me.
For more than 200 years, the Supreme Court has interpreted the law. It’s a very interesting time politically and legally because both sides are making completely contradictory arguments. We cannot have it both ways on either side.
If you want a constitutional right to medical choice to have an abortion or not get a vaccine, you’re going to have to rely on the same precedent and give your political rival the same right. The sooner we realize that, and start working together to retain privacy in medical choice, the faster we can secure rights for all.