editorial (2006-11)

Privacy v. Pretense

The state Constitution is under moralistic siege

Privacy v. Pretense

The Tennessee Constitution has a couple of very nearly unique features. It provides, on the one hand, this state’s citizens with the “unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.”

Besides that “right of revolution,” the Constitution’s declaration of rights says it is “absurd, slavish, and destructive of the good and happiness of mankind” to fail to resist “arbitrary power and oppression” on the part of the government.

Taken together, the rights in that declaration have been ruled by the state’s Supreme Court to constitute an implied right to privacy that the framers bestowed on every Tennessean.

Our Constitution, which is the envy of many an American citizen of other states, goes on to declare that “everything in the bill of rights contained is excepted out of the General powers of government and shall forever remain inviolate.”

Yet the General Assembly in Nashville is on the verge of violating that declaration by abrogating the right of privacy. The state Senate has resolved, by a vote of 24-9, in favor of a constitutional amendment saying that “nothing in this Constitution secures or protects a right to abortion or the funding thereof.”

Such an amendment, if advanced by the House and affirmed by a two-thirds vote in the next General Assembly, would be put to statewide referendum in 2010.

It would allow subsequent Legislatures to take away every woman’s right to privacy, her right to control of her own body, and her freedom in questions of reproduction.

So much for rights being “forever inviolate.”

The proponents of the measure, which has come up before but never given much chance for passage, are those who say they believe that abortion is murder because fetuses are live babies.

Those same anti-abortion people, including many men who seem to have no understanding of women’s rights, say their motive is to preserve lives, which they claim begin at the moment of conception.

Their claim is hollow. They aren’t interested in lives so much as they want to discourage sexual behaviors of which they don’t approve and to punish those who engage in sexual activity, whether by choice or, even, by force, for reasons other than procreation.

Otherwise, how could they be adamantly against the so-called “morning-after pill,” which prevents pregnancy before it occurs, following sexual contact?

These zealots would undermine the privacy rights of every Tennessean to get at the women who suffer an unplanned pregnancy and to punish them.

Such a holier-than-thou attitude, when applied to governmental authority, is the definition of “arbitrary power and oppression” under the Tennessee declaration of rights, and to fail to resist it would be, as the Constitution says, “absurd, slavish, and destructive….”

The state Supreme Court’s 2000 decision that the right to have an abortion in Tennessee is protected by the right to privacy wasn’t entered into lightly. The court ruling came down 4-1, and it included language that referred to the right of privacy as “a fundamental right.”

If this egregiously anti-female amendment were ultimately to pass, it would be the first time since slavery that the state’s Constitution has been changed in such a way that individual, fundamental rights are reduced.

The risk of its passage has grown with the fever that has gripped the anti-abortion crowd since U.S. Supreme Court Justice Sandra Day O’Connor, a defender of women’s rights, was replaced by a male justice with a record of opposing the Roe v. Wade decision that took abortion out of the back alleys of America and made it a legal procedure in 1973.

South Dakota has already passed legislation that would make almost all abortions crimes in that state, if the law should somehow pass federal-court muster. Mississippi is close to following suit, and anti-choice legislators in other states are whipping the issue into a frenzy, hoping to criminalize a medical procedure that has been legal for more than three decades and honors a woman’s privacy in determining her future.

Now in Tennessee, where attempts to restrict abortion can’t be made without ravaging our Constitution and putting all individual rights in eventual jeopardy, the mood of the Senate majority is “individual rights be damned.” If the people want to take away their own rights and those of posterity, it’s their business, the majority seems to be saying.

Well, it’s not. No voting majority should ever be allowed to use their personal moral beliefs to trample the rights of others who don’t ascribe to their idea of morality. That’s why the Tennessee Constitution’s framers were so adamant. They could see sentiment overriding law and undermining rights if those rights weren’t clearly protected for all time.

Individual rights that are set out in the Constitution, its Article XI, Section 16 says, “shall never be violated on any pretense whatsoever.”

What we are confronted with in the Legislature today is a “pretense” posited against us by political posturing. Let’s hope the House, with its more level-headed leadership, strikes down that exercise in moralistic pretension.