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on the radar

8.01.05 | Frank Susman is an attorney with Gallop, Johnson & Neuman, L.C., in St. Louis, Mo. He has argued numerous cases before the Supreme Court, including Webster v. Reproductive Health Services, the 1989 case that dealt with increased restrictions on abortion. Susman spoke with Ms. recently about threats to Roe v. Wade, the underlying notion of privacy and the Supreme Court nomination of Judge John Roberts.

Ms.: At the Ms. National Press Club Forum, you said strong linkage exists tying together Griswald v. Connecticut, Roe v. Wade, Lawrence v. Kansas and the appeal of the family of Terry Schiavo. Could you explain the connection?

While the Bush administration has been active in loosening all restraints upon business by changes in antitrust, environmental and tax laws, it has simultaneously sought to impose a particular moral view through restrictions upon individual behavior from the bedroom to the deathbed.

Individual privacy is clearly under attack from the Patriot Act and through rulings by the Federal Food and Drug Administration on issues such as RU 486, Plan B, stem cell research and others; all decisions made on political, religious and moral standards instead of acknowledged science. For over 50 percent of our family planning budget to be spent on abstinence programs and for the Office of Family Planning to be headed by an individual who believes foremost in abstinence as the true answer is depressingly astounding. [Threats to] privacy in the areas of contraception (established in Griswold v. Connecticut in 1965), of abortion (established in Roe v. Wade in 1973), of homosexual behavior (established in Lawrence v. Texas in 2003) and the horrendous and intrusive involvement of the government in the matter of Terri Schiavo are threats to all freedom-loving individuals.

Where are the true conservatives who profess to believe that the best government is the least government and what can explain their silence on these invasions of individual liberties? While the law can be comfortable in codifying moral beliefs which are universally accepted (e.g., homicide, theft, etc.), the law has always been on shaky ground when it attempts to codify the moral or religious beliefs of only a segment of society; a segment which wishes to extend its private beliefs on all and disproportionately on those with less political power such as minorities, the indigent and women; and a segment which believes it has some monopolistic pipeline directly to God and only it knows what God thinks and believes. There is no surer path to establishing a theocracy here in America, while we eschew the same overseas.

Ms.: The Constitution makes no mention of the "right to privacy," but the concept has been encoded in our legal history for more than 100 years. What is its source?

While the word privacy does not appear in our Constitution, this critical concept has been recognized by the Supreme Court since 1891, when the High Court stated in Union Pacific Railroad Co. v. Botsford: “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his [or her] own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”

Ms.: If you could ask Roberts a question at his nomination hearing, what would it be?

If limited to asking Judge Roberts only one question, my question would be: “Judge Roberts, do you believe that pregnant women have the intelligence and the right, to decide within the realm of their own personal religious and/or moral convictions, their personal health consequences and other relevant life-altering considerations, whether to terminate a pregnancy, in consultation with their personal physicians, without the interference or consent of the government?”

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