Here's Couric's discussion with Biden about Roe v. Wade:
Katie Couric: Why do you think Roe v. Wade was a good decision?
Joe Biden: Because it's as close to a consensus that can exist in a society as heterogeneous as ours. What does it say? It says in the first three months that decision should be left to the woman. And the second three months, where Roe v. Wade says, well then the state, the government has a role, along with the women's health, they have a right to have some impact on that. And the third three months they say the weight of the government's input is on the fetus being carried.
And so that's sort of reflected as close as anybody is ever going to get in this heterogeneous, this multicultural society of religious people as to some sort of, not consensus, but as close it gets.
I think the liberty clause of the 14th Amendment … offers a right to privacy. Now that's one of the big debates that I have with my conservative scholar friends, that they say, you know, unless a right is enumerated - unless it's actually, unless [it] uses the word "privacy" in the Constitution - then no such "constitutional right" exists. Well, I think people have an inherent right.
Note that he's allowed by Couric to go on as long as he wants without being challenged. One might ask him why it is the Supreme Court's business to fashion a "consensus" on this issue, or even if assuming there's a right to privacy, that it extends to the right to obtain an abortion. I can certainly see a Sean Hannity or a Bill O'Reilly challenging Biden on these points. But Couric lets him slide and acts as if she's awed by his legal acumen.
Now here's the discussion with Palin:
Couric Why, in your view, is Roe v. Wade a bad decision?
Sarah Palin: I think it should be a states' issue not a federal government-mandated, mandating yes or no on such an important issue. I'm, in that sense, a federalist, where I believe that states should have more say in the laws of their lands and individual areas. Now, foundationally, also, though, it's no secret that I'm pro-life that I believe in a culture of life is very important for this country. Personally that's what I would like to see, um, further embraced by America.
Couric: Do you think there's an inherent right to privacy in the Constitution?
Palin: I do. Yeah, I do.
Couric: The cornerstone of Roe v. Wade.
Palin: I do. And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.
While Biden sees this as a privacy issue, Palin sees it as a state's rights issue. Couric asks about a right to privacy, but before Palin can explain what she thinks the right to privacy means, Couric turns it into an attempted gotcha by calling it the cornerstone of Roe v. Wade.
It is quite possible to believe in a constitutional right of privacy in some form but also to believe that it does not extend as far as the Roe v. Wade holding. It's pretty obvious here that by Couric butting in and shifting the discussion back to Roe v. Wade, that Palin got flustered (which can happen when a nonlawyer is pressed on constitutional law decisions) and Couric's next question about naming other Supreme Court cases may have panicked her a bit.
I support Roe v. Wade, but it is certainly possible to make a reasoned legal argument against it. When you ask on the one hand an experienced constitutional law attorney and on the other a lay person about the legal fine points, and show the former deference while playing gotcha games and interrupting the latter, you'll get this sort of result. I'd like to see Biden handle a gotcha question about some of the issues Palin dealt with in renegotiating the oil leases (which involved the Canadian government by the way).
You set the terms so that based on my own proposed sources, I can't succeed at your challenge!
