Since when did a fundamental right to personal liberty become a math problem? Since Casey (1992), that’s when.
The fundamental flaw of Casey has always been its concession that some people could suffer a 100% denial of a constitutional right so long as those people denied their constitutional right were not a “large fraction” of the people seeking to exercise that right.
Does that work for gun ownership? Of course not. But when it comes to a woman’s right to privately decide issues related to her own medical care, let’s do math!
Now a woman at the blog FiveThirtyEight has laid out the analysis in a way that should make the outrageousness of this approach apparent. Though she doesn’t seem to get it herself; she simply hopes that a Supreme Court opinion in the case heard yesterday (Whole Woman’s Health v. Hellerstedt) will offer a “clearer way to do the math.” Perhaps that’s tongue in cheek? Don’t think so.
Whole Woman’s Health is not a third-grade arithmetic problem. As Justice Ruth Bader Ginsburg said at oral argument, “What it’s about is that a woman has a fundamental right to make this choice for herself.”