Aggressively Defending My Clients Since 1990


On Behalf of | Jul 25, 2021 | Firm News

One of the reasons conservatives oppose large government because it interferes with individual freedom.  True North: The Principles of Conservatism, The Heritage Foundation,  As one prominent conservative think tank states: “The election of Donald J. Trump as president offers the best opportunity in decades to shrink the size and power of government and increase individual liberty.” Freedom rising under President Trump,”  The Heartland Institute,  This idea is displayed by conservatives who fly the Gadsden flag which carries the motto “Dont Tread on Me,” “Conservatives defend Chris Pratt for wearing ‘Don’t Tread On Me’ T-shirt,”  The Hill,  Conservatives demand liberty and privacy from government expansion.  In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972).  “Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized … as essential to the orderly pursuit of happiness by free men.”  Meyer v. Nebraska, 262 U.S. 390, 399 (1923)

In January 1973, the Supreme Court issued a 7–2 decision ruling that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a “right to privacy” that protects a pregnant woman’s right to bodily integrity so she can follow the dictates of her own conscience on whether or not to have an abortion.  That decision was Roe v. Wade, 410 U.S. 113 (1973).

Roe v. Wade holds that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one. The Third Amendment in its prohibition against the quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Fifth Amendment in its self-incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.  See. Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (invalidating state law banning contraceptives.   In multiple Supreme Court decisions, i.e., Webster v. Reproductive Health Services, Planned Parenthood v. Casey, Stenberg v. Carhart, Gonzales v. Carhart, Whole Woman’s Health v. Hellerstedt, Dobbs v. Jackson Women’s Health Organization, the Court has upheld the constitutional value of Roe v. Wade.  Clearly, Roe is a precedential decision.

Every law student in their first year of law school is taught that binding precedent (also known as a mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems.  Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law.  Existing binding precedent from past cases are applied in principle to new situations by analogy.

One law professor has described mandatory precedent as follows:

Given a determination as to the governing jurisdiction, a court is “bound” to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, “directly in point” means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also presented in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.  Rombauer, Marjorie D. (1978). Legal Problem Solving: Analysis, Research and Writing (3rd ed.). West Publishing. pp. 22–23.

Roe  has wide implications for other areas of law.  “Bodily integrity” requires personal autonomy and the self-determination of human beings over their own bodies. Before Roe v. Wade and Planned Parenthood v. Casey, protections against bodily intrusion, such as forcing criminal suspects to physically produce bodily evidence of drug possession, were not well defined. But Casey cited this earlier line of precedent in placing the right to abortion at the intersection of personal decision-making and government interference. In so doing, Casey established an enduring right to bodily integrity.  It cannot be doubted that Roe’s privacy right is consistent is among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.”

Conservatives must follow their own teachings and not tread on a pregnant woman’s right to bodily integrity.