The Excluded Middle: Why Either ObamaCare or Roe v. Wade Must Go

by pjamesbeardsley

There is a rule in logic called the law of the excluded middle: in reality, something either is or is not.

The ruling on Roe v. Wade was a ruling of the 9th Amendment (at the District level, and a very poor one: the Supreme Court, although it upheld the ruling, discarded, mocked, and borderline shamed the District Court’s rationale) and 14th Amendment (at the Supreme Court level).

The relevant Constitutional text comes from Section 1 of the 14th Amendment:

nor shall any State deprive any person of life, liberty, or property, without due process of law

This merely extended the protection of life, liberty, and property citizens have under the 5th Amendment to state laws:

nor be deprived of life, liberty, or property, without due process of law;

The 5th Amendment was irrelevant to Roe v. Wade, because the law challenged was a state law, not a federal one, but it does demonstrate that because of the identical text, if the principle applies at the state level, it also applies at the federal level.  This is not a power granted to the federal government that is prohibited to the states.

The end result of Roe and subsequent decisions was that “privacy” was a liberty in a doctor-patient relationship, especially in matters related to procreation (largely due to Skinner v. Oklahoma, which prohibited states from forced sterilization of “habitual criminals”), if and only if those interests outweigh the interests of the States‘ interests: “safeguarding health, maintaining medical standards, and in protecting potential life.”  Regardless of the merits of such an argument, and even such pro-choice liberals as Alan Dershowitz and Cass Sunstein, as well as Blackmun’s own clerk, Edward Lazarus, admit it stinks on ice, that’s the result.

Which begs the question: if the federal government is not allowed to impose mandates on a doctor-patient relationship (and method of payment is an aspect of such a relationship), and states are only allowed to do so if they can demonstrate that they doing so in “safeguarding health, maintaining medical standards, and in protecting potential life” efforts, how is ObamaCare Constitutional when it does exactly that?

Either the text “liberty” in the 14th and 5th Amendments prohibits such interference or it doesn’t.  It’s the law of the excluded middle.