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Polls and Abortion:

Keith Burgess-Jackson faults the New York Times for saying that "nearly 70 percent of Americans [said] in a recent Harris poll that they would oppose Judge Alito's confirmation if they thought he would vote against constitutional protection for abortion rights." The poll itself, he points out, asked "If you thought that Judge Alito, if confirmed, would vote to make abortions illegal, would you favor or oppose his confirmation?," which is analytically quite different: A vote against constitutional protection for abortion rights is a vote to return the matter to the states, not to make abortions illegal. (Even if one focuses on the practical implications, I doubt that more than a handful of states would even make all first-trimester abortions-on-demand illegal, though many states might make many second-trimester abortions illegal.)

But it turns out that the poll results for these two questions aren't vastly different. Prof. Burgess-Jackson writes that "There is no evidence that 70% of the American people oppose overruling Roe v. Wade," but in fact a Dec. 2005 NBC News poll that asked, "The Supreme Court's 1973 Roe versus Wade decision established a woman's constitutional right to an abortion, at least in the first three months of pregnancy. Would you like to see the Supreme Court completely overturn its Roe versus Wade decision, or not?" yielded 30% overturn, 66% not overturn -- not that far off the 31%-69% result reported by the Harris Poll. A Nov. 2005 poll reports a lesser margin, 32% to 57%; but the big picture remains not vastly off of what the Harris poll reports. (The Dec. 2005 and Nov. 2005 polls misdescribe Roe as focusing chiefly on the first three months; in practice, Roe also protected abortions in the following three months, though with some modest regulations; Casey then cut that back to abortions before viability; but this error, while significant generally, is not that important for purposes of this particular post.)

So, yes, it's right to fault the New York Times for its imprecise reporting, and for that matter Harris for surveying about a hypothetical scenario that is extremely unlikely (Alito voting to actually make abortions illegal). But the practical effect of the error is actually not that great, and there is indeed substantial evidence that a large majority, quite possibly nearly 70%, of the public opposes -- whether rightly or wrongly -- a total overruling of the Roe/Casey constitutional right to abortion.

Sean Elgin (mail):
I wonder what the results would be if the question were asked in a way that people would understand the ramifications of overturning Roe - that the states would then have jurisdiction over the matter instead of the courts. Something like "If Roe v Wade were overturned, the abortion issue would then be fought in the state legislatures instead of in the federal courts. Do you think the states should decide the issue of abortion, or the federal court system?"
1.13.2006 7:57pm
Sean Elgin (mail):
I wonder what the results would be if the question were asked in a way that people would understand the ramifications of overturning Roe - that the states would then have power over the matter instead of the courts. Something like "If Roe v Wade were overturned, the abortion issue would then be fought in the state legislatures instead of in the federal courts. Do you think the states should decide the issue of abortion, or the federal court system?"
1.13.2006 7:59pm
PJ:
But it is possible to support Roe and support a nominee who opposes Roe. So, for there to be little practical difference between the Harris Poll and NYT editorial, you would have to show that almost everyone who supports Roe would oppose a candidate who does not. I don't know how true that is, but it at least widens the gap a little bit between the Harris Poll and NYT editorial.

Real question: Why woould the Harris Poll even ask that question?
1.13.2006 8:00pm
Rhadamanthus1982 (mail) (www):
Polls mean precisely nothing. It is well established that the answer can be dictated by slanting the question one way or t'other. Further people rarely give their true feelings in pols because the sense of irrelevance is prevalent.
1.13.2006 8:06pm
TruthInAdvertising:
"A vote against constitutional protection for abortion rights is a vote to return the matter to the states, not to make abortions illegal."

Depending on how the vote goes - what's to preclude the US Supreme Court from finding that abortion is murder and thus outlawing it all together? Or once stripped of constitutional protection by the Court, what's to preclude Congress from passing laws to restrict or outlaw abortion? As others have noted, the assumption that overruling Wade will "merely" lead to battles at the State level assumes that abortion opponents will simply rest at fighting on a state-by-state basis. But maybe they'll just got for a federal statute outlawing or restricting abortion.
1.13.2006 8:11pm
Sean Elgin (mail):
I don't think true conservative-movement legislators could get away with implementing a federal statute outlawing abortion, since the primary argument against Roe has been that it should be up to the states, not the courts.
1.13.2006 8:15pm
Splunge (mail):
Well, I thought the definition of murder was ipso facto up to the states. Meaning neither SCOTUS nor Congress could forbid abortion. It's only that the former can forbid forbidding it, so to speak.
1.13.2006 8:15pm
Chris Lawrence (mail) (www):
"what's to preclude Congress from passing laws to restrict or outlaw abortion?"

The fact that the Republican Party would go the way of the Dodo in 90% of America if it tried to outlaw abortion outright?

Having said that, the fair-weather federalists in the GOP would not, in practice, leave it up to the states any more than the Democrats would.
1.13.2006 8:21pm
Just an Observer:
I have often thought that a fairly balanced poll question would be something like this:

"In 1973 the Supreme Court established a constitutional right to an abortion, and prevented the states from deciding for themselves if abortion should be legal. Do you agree or disagree with this decision, or do you have no opinion?"

The question really must embody both elements -- the "right" to abortion and the state-determination issue.

My own feeling, reading between the lines of the polling data I have seen, is that a substantial majority still prefers to believe that there is such a right in the Constitution. I think that majority would survive the more nuanced question that encompassed the element of state determination. In that sense, the majority does favor the core holding of Roe.

However, polls also show that when presented various detailed questions, the public is very ready to support restriction and regulation of abortion. That is why the status quo after Casey seems to approximate a rough popular consensus, and the battleground is over the boundaries of such restriction.

One thing polling data does show is that the public would support restrictions on abortion much earlier during preganancy than the point of "viability" hard-wired into the Casey standard. So on that point -- which defines an important upper limit on the the abortion "right" -- the public is less sympathetic to abortion than the SCOTUS-defined standard.
1.13.2006 8:22pm
Steven:
Sean~

That was a joke, right? You really think that conservatives would not support federal legislation to ban abortions because the prior argument was it should be left to the states?
1.13.2006 8:23pm
Anonymous for now (mail):
I agree with Sean that the poll would be much, much more reliable if it explained the result of overturning Roe. I am confident that the vast majority of the American public equates overturning Roe v Wade with making abortion illegal, and concomitantly believes that Roe v wade made abortion legal in the first place.

The truth is that the average joe on the street (at least the California street) doesn't understand the division of powers between the federal and state governments well enough to understand Roe even if it was explained in a short poll question.

I am equally confident, however, that Congress and the Federal courts could easily find a link between interstate commerce and murder. I'm not sure what it would be, but just give them time.

-M.L.
1.13.2006 8:23pm
John Jenkins (mail):
The easiest jurisdictional hook is the one in the Securities Exchange Act - Procure an abortion through a means of interstate commerce. To the extent that the person used the internet or a telephone or the mail to, say, make an appointment, then that is enough of a jurisdictional hook (at least in securities law.
1.13.2006 8:35pm
Just an Observer:
In describing the conflicted attitudes of the public toward abortion, I would add the satirical line I saw recently on Saturday Night Live, which I remember as:

"Polls show most people are against abortion, but they think it should be legal in case they need it for their slutty daughters."

Apologies to whomever is offended by that line. It does describe the conventional mood more closely than we would like.
1.13.2006 8:36pm
blackdog:
Hold on a second. I am fan of the New York Times's news coverage and feature reporting, but the Times Editorial Board knew exactly what it was doing in this case. Here's why:

The editorial in question here, published on January 13, stated, "With nearly 70 percent of Americans saying in a recent Harris poll that they would oppose Judge Alito's confirmation if they thought he would vote against constitutional protection for abortion rights . . ." The point of Professor Volokh's post seems to be that whether or not the NYT stated the Harris poll properly, that figure still may reflect the views of the American populace.

But then look at a New York Times editorial published on Sunday, January 8 ("Judging Samuel Alito"). There, the Times stated, "In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito's nomination if they thought he would vote to make abortion illegal - which it appears he might well do." (italics and boldface added)

Now, the New York Times Editorial Board is not full of idiots. They are very intelligent people who are well ensconced in current events and controversies. The Board has a member who is a Harvard Law graduate and its resident "legal expert" (Adam Cohen). The Board members know as well as anybody who carefully follows major issues like abortion that overturning Roe will not "make abortion illegal." And yet not only did they include this charged (and inaccurate) statement in their pre-hearings, Sunday editorial, they endorsed it by adding the scare tactic, "which it appears he might well do." That's not "imprecise reporting," as Professor Volokh suggests; that's flat-out advancement of a factual statement they almost certainly know is false.

That's why I am much less inclined to chalk the Times's January 12 editorial up to "imprecise reporting." More likely, I am betting that it received some flak for quoting the Harris poll verbatim in its January 8 editorial, since it is so obviously wrong. As a result, in its January 12 editorial, it tries to fudge the poll's question into something that is, as Professor Volokh points out, closer to reality. But whether it reflects the country's actual position on abortion restrictions or not is a very different question from whether the NYT Editorial Board is engaging in misleading demagoguery. That, I think, is much less disputable.

On a final note, I add that in NYT news articles, if a source is quoted as propounding the above inaccurate abortion logic (i.e., that overturning Roe will make abortion illegal), the reporter will insert a statement correcting that fallacy. See, for example, a January 12 article ("Democrats Take Aggressive Tack; Alito is Unfazed"):
Mr. Durbin responded that he was "concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion, that would make it illegal in this country, would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives and the doctors who help them."

Overturning Roe would not make abortion illegal but would leave the question in the hands of states.
It appears that the Times's reporting is subject to greater factual scrutiny than its editorializing. And to think, only a couple years ago, it was the Times's reporting that had the credibility problem.
1.13.2006 8:39pm
Sean Elgin (mail):
Steven~
No joke. I said true "movement" conservatives, not flame-breathing, caricature right-wingers. True movement conservatives, such as in the Federalist or Heritage Society, have a coherent philosphy, espousing more state rights and less central government authority, and have a respect for law in its most literal sense. While most probably would like abortion outlawed, the conservatives that I have just described would not want to sacrifice their entire intellectual framework to pass a federal law outlawing abortion. As another poster noted, murder laws are left to the states, and so should abortion.
1.13.2006 8:49pm
Sean Elgin (mail):
Chris Lawrence ~
Unfortunately, very few true federalists hold office. Most are policy wonks working in a think tank somewhere.
1.13.2006 8:53pm
Cornellian (mail):
I wonder what the results would be if the question were asked in a way that people would understand the ramifications of overturning Roe - that the states would then have jurisdiction over the matter instead of the courts. Something like "If Roe v Wade were overturned, the abortion issue would then be fought in the state legislatures instead of in the federal courts. Do you think the states should decide the issue of abortion, or the federal court system?"

True movement conservatives, such as in the Federalist or Heritage Society, have a coherent philosphy, espousing more state rights and less central government authority, and have a respect for law in its most literal sense. While most probably would like abortion outlawed, the conservatives that I have just described would not want to sacrifice their entire intellectual framework to pass a federal law outlawing abortion. As another poster noted, murder laws are left to the states, and so should abortion.

Such "movement conservatives" can count perhaps one or two members of the House, and perhaps one Senator among their number. The remaining so-called conservative Republicans in either chamber will have no difficulty supporting federal legislation outlawing abortion, regardless of any state legislation that might say otherwise, because the new conservative principle at least since 2000, and probably since 1994, is that the feds have jurisdiction over anything the feds want to have jurisdiction over. That will continue to be the conservative position until the Republicans are out of power in Congress, at which point the conservative position will magically revert back to a federalist position in which such matters are left to the states. Granted, many conservatives have claimed they simply want the matter decided by the states, not the federal government, but no one should take them seriously on that point, not after things like Raich v. Ashcroft and the Terry Schiavo law.
1.13.2006 9:04pm
Cornellian (mail):
Depending on how the vote goes - what's to preclude the US Supreme Court from finding that abortion is murder and thus outlawing it all together? Or once stripped of constitutional protection by the Court, what's to preclude Congress from passing laws to restrict or outlaw abortion? As others have noted, the assumption that overruling Wade will "merely" lead to battles at the State level assumes that abortion opponents will simply rest at fighting on a state-by-state basis. But maybe they'll just got for a federal statute outlawing or restricting abortion.

Hard to see how SCOTUS could "find that abortion is murder" since the Constitution does not create an offense of murder, nor is there any general federal murder statute, nor would SCOTUS have the last word on the meaning of a state murder statute. Absent Roe v. Wade there is nothing constitutionally stopping the feds from passing a statute outlawing abortion entirely. As we now know from Raich v. Ashcroft, interstate commerce is anything the feds say it is and a prohibition on abortion could easily fit within the now limitless Commerce clause. This is one of the political consequences of unlimited federal jurisdiction. If the matter were really up to the states, some would pass relatively strong restrictions, others would pass few or no restrictions, and some might outlaw abortion entirely. And that's how things would continue, with periodic attempts by the outlawing states to hinder women from those states from travelling to another state for an abortion. Given unlimited federal jurisdiction however, those interest groups who think abortion is far more important than a proper reading of the Commerce clause will not be able to just accept the fact that a particular state will never be convinced that their restrictions on abortion are too strict, or no strict enough. Instead they'll go to the feds and demand a statute mandating the restrictions (or lack of restrictions) on abortion which they would prefer to see, with that mandate applying everywhere in the country, regardless of what a particular state may wish. It's a recipe for never ending tension, much like Roe v Wade itself.
1.13.2006 9:12pm
Grant Gould (mail):
I suspect that if you polled Americans, you would find that 90% of them would agree that if Roe were overturned, Congress would ban abortion at the federal level within a nanosecond. It's not as if a "commerce" pretext is hard to come by.

Abortion is either a federal issue via Roe or it's a federal issue via a federal ban; nobody apart from a few conlaw professors and federalists believes that abortion could stay very long at the state level.
1.13.2006 9:16pm
Defending the Indefensible:
Sean Elgin,

How many true "movement conservatives" think Raich came out wrong?
1.13.2006 9:17pm
magoo (mail):
I wonder what the result would be if the poll read: "The Supreme Court's 1973 Roe versus Wade decision established a woman's constitutional right to an abortion until the umbilical cord is cut, because the mandated “health” exception includes psychological well-being and thus is big enough to drive a truck through. Would you like to see the Supreme Court overturn its Roe versus Wade decision, or not?"
1.13.2006 9:30pm
JE Meyer (mail):
Abortion polls are notoriously slippery. If you ask people whether they would ban abortions after the first trimester, or sex-selection abortions, or whether they would require spousal notification -- you get huge majorities. This can only mean one thing: There is a broad slice of people who are deeply confused: They claim to want more abortion regulation, yet they do not recognize that it would require overruling or severely cutting back on Roe for those regulations to be upheld.

Stuart Taylor has written on this: Stuart Taylor, How the 'Conservative' Supreme Court Leans to the Liberal Side, National Journal, July 8, 2000, p. 2207.

This and other polls suggest that the Court is more liberal than the public on abortion. To be sure, the data show considerable public ambivalence and some logically inconsistent responses to differently worded questions. While the Newsweek poll found by 62 percent to 31 percent that respondents wanted any new Justices to uphold Roe and continue "protecting a woman's right to an abortion," the Los Angeles Times survey found that only 43 percent of respondents expressed support for Roe, down from 56 percent in 1991.

Such disparities may reflect some confusion about exactly what the Court actually did in Roe, and what would happen if the decision were overruled. Small wonder, when journalists such as Time's Eric Pooley tell their readers that by "overturning Roe vs. Wade," a more conservative Court would "ban abortion."
In fact, no Justice in history has suggested that he or she would ban abortion. As all scholars and most journalists know (but rarely say), overturning Roe would ban nothing, but rather leave it to elected officials to decide how (if at all) to restrict abortion. And most states would continue allowing fairly broad abortion rights.
1.13.2006 10:23pm
therut (mail):
That would be delicious if Congress did outlaw abortions based on the commerce clause. I would laugh till the day I died. Talking about the most abused area of law that the liberals love comming full circle to bit them you know where!!!!!!!Sorry I can't stop laughting.
1.13.2006 10:26pm
minnie:
[COMMENT DELETED for being ridiculously off-topic. Minnie and all others, please keep comments relevant to the post they're commenting on, or at least to the discussion as it has evolved since the post. Don't just post something seeking a response on a completely unrelated topic.]
1.13.2006 11:10pm
Adam (mail) (www):
Err . . . y'all realize that Congress has already passed (and the President signed into law) an abortion restriction based on the Interstate Commerce clause? ("Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.")
1.13.2006 11:18pm
John (mail):
Every non-lawyer I've ever talked to about Roe believes that a reversal of Roe would mean that abortions would be illegal ("like they were before"). Subtle needs for legislative intervention before that happened are just not seen. For this reason, the two polls discussed are really asking the same question in the public's mind.

Perhaps a better question would be, who do you think should decide if abortions should be legal--the courts or the voters?
1.13.2006 11:32pm
Nobody (mail):
Sean, how many true movement conservatives have voted for the president's disastrous budgets?
1.13.2006 11:42pm
Omar Bradley (mail):
All of this is largely academic as there are now at most 4 votes to reverse Roe, and I don't think that Alito and Roberts are true believers in the Scalia mold. If Stevens goes, then I'd watch out.

More likely is that all the minor restrictions will be upheld as not being an undue burden(ie notification, pba, informed consent, etc...). The core holding will not be disturbed and the 95% of abortions that occur in the 1st trimester will remain protected. On the fringe some change will occur, that'll satisfy the natives, and the GOP will keep using the pro lifers to get votes. They know thatreversal of roe and criminalization of abortion will not be good for the party, which cares more abuot money than it does about fetuses.

Also, why do people assume that if Roe is reversed it's over? Scalia is 70. The dems will get more appointments and it'll just be reinstated. In the end, pre-viability abortion and health/life related abortion is pretty much here to stay in one form or another.
1.14.2006 12:10am
The NJ Annuitant (mail):
I really don't see the point of such polls. Either Roe is a correct statement of the scope of the 14th amendment, or else it is not.
If Supreme Court were to overrule Roe and Doe, the abortion issue would go back to the state legislatures ( or, in some cases, the state supreme courts). If there is a strong majority in favor of abortion rights, then any new legislation would go that way. If the issue were resolved by the political process, I think it would become less explosive. It would be more of a democratic result. I think the public would find that more valid than a SCOTUS opinion that is far from irresistible.
1.14.2006 12:22am
jbarntt (mail):
Regarding real conservatives or federalists, I consider myself both and disagree with the Raich decision, even tho' I am opposed to legalised marijuana. I am also strongly opposed to legalised euthanasia, but support the right of my state, Oregon, to enact it contra AG Ashcroft.

Abortion is an issue properly belonging to the states. It is not an interstate commerce question. I would object to the SCOTUS declaring abortion unconstitutional. I also believe that it would be good for our politics if Roe were overturned, as it would return a social issue to the people of the several states and eliminate the unfruitful debate we currently have regarding it at the federal level.

Roe is a failed experiment, it didn't settle anything.
1.14.2006 12:28am
KMAJ (mail):
You are focusing on questions that do not give you an accurate answer, you are only giving people a yes or no answer on abortion when the reality is there are three options, abortion on demand (current Roe v. Wade position), restrictions on abortion and a ban on abortion. The large majority (70% - CBS / 80% - ABC) favor some restrictions or a ban on abortion, only a minority (27% - CBS / 17% - ABC) support abortion on demand, as it now stands.

------
CBS News Poll. Jan. 5-8, 2006. N=1,151 adults nationwide. MoE ± 3.

"What is your personal feeling about abortion? (1) It should be permitted in all cases. (2) It should be permitted, but subject to greater restrictions than it is now. (3) It should be permitted only in cases such as rape, incest and to save the woman's life. OR, (4) It should only be permitted to save the woman's life."

All Cases - 27%
Greater Restrictions - 15%
Rape, Incest, Woman's Life - 33%
Woman's Life Only - 17%
Never - 5%

ABC News/Washington Post Poll. Dec. 15-18, 2005. N=1,003 adults nationwide. MoE ± 3. Fieldwork by TNS. RV = registered voters

"Do you think abortion should be legal in all cases, legal in most cases, illegal in most cases, or illegal in all cases?"

Legal in All Cases - 17%
Legal in Most Cases - 40%
Illegal in Most Cases - 27%
Illegal in All Cases - 13%

http://www.pollingreport.com/abortion.htm
-------------------------
So it really is affected by how you ask the question, as well as how you report the answers and what they really represent. Our media does a great job of deceiving the public on this issue.
1.14.2006 12:30am
AppSocREs (mail):
Perhaps two decades ago, the sociologist/demographer Judith Blake Davis did an analysis of poll results that was published in the peer-review journal Demography. Essentially she found that the vast majority of Americans want abortions to be available for certain restricted situations. The interesting thing to me is that nothing much has changed in the poll results or their age-sex-race breakdowns since then. This suggests a very large majority ( 2/3 - 3/4 )has remained unwittingly in favor of overturning Roe v Wade despite decades of propaganda on the subject. It also shows that women become more opposed to abortion the more experience they have with childbearing!!
1.14.2006 12:37am
Clayton E. Cramer (mail) (www):

"what's to preclude Congress from passing laws to restrict or outlaw abortion?"

The fact that the Republican Party would go the way of the Dodo in 90% of America if it tried to outlaw abortion outright?
Huh? If this is really the case, then overturning Roe would do effectively nothing. Why would the states ban abortion if there is this huge majority in support of it?

Other commenters have pointed out that there is widespread support for restricting abortion--especially beyond the first trimester. A Newsweek issue from earlier in the year I was reading in the gym earlier today had a survey that showed about 16% of Americans wanted a complete ban on elective abortions; 21% wanted no restrictions at all. A strong majority wanted more restrictions than the current system.

Of course, this assumes that most of these people actually know what the current laws are--in some states, such as Idaho, the abortion laws are right up to the bumpstops of what the federal courts have allowed.

Having said that, the fair-weather federalists in the GOP would not, in practice, leave it up to the states any more than the Democrats would.
Why do you say that? Back before Roe, five states had substantially liberalized abortion. What federal laws did Congress pass to stop them?
1.14.2006 12:58am
Omar Bradley (mail):
Congress was a lot more liberal back in 1971 than it is now.
1.14.2006 1:05am
Clayton E. Cramer (mail) (www):

Regarding real conservatives or federalists, I consider myself both and disagree with the Raich decision, even tho' I am opposed to legalised marijuana. I am also strongly opposed to legalised euthanasia, but support the right of my state, Oregon, to enact it contra AG Ashcroft.

Abortion is an issue properly belonging to the states. It is not an interstate commerce question. I would object to the SCOTUS declaring abortion unconstitutional. I also believe that it would be good for our politics if Roe were overturned, as it would return a social issue to the people of the several states and eliminate the unfruitful debate we currently have regarding it at the federal level.

Roe is a failed experiment, it didn't settle anything.
Ditto. I've long been concerned that the Supreme Court (or, for that matter, Congress) acting as a superlegislature on state issues is tremendously harmful.

I think Oregon's voters made a big mistake with euthanasia. I unfortunately assisted in passing California's medical marijuana initiative. (Like a number of Californians, current or former, as I am, I saw the error of my ways within a couple of years.)

Still, the primary responsibility for passing laws that affect within state matters lies with the voters. If they screw up, without violating the state or federal constitutions, they have it within their power to correct it.

I look forward to the day when the U.S. Supreme Court will start doing their job again--deciding whether laws passed by the voters or their elected representatives are constitutional--not whether they are good or bad.

Fifty states as fifty laboratories is an unintended consequence of federalism, and it has worked out generally pretty well. Some states try truly stupid ideas; within a few years, when the idea fails, its proponents can only ask Congress to make the bad idea national in scope (to hide that it failed in one state). Some states try innovative ideas that work--and when they do work, other states copy it.
1.14.2006 1:06am
Defending the Indefensible:
Since I asked what the "movement conservatives" thought of how Raich came out in view of federalist principles, I'd like to pose the reverse question to anyone that defends the privacy basis for abortion. How is it that the majority could find for Roe and against Raich, or was it just that the latter question was improperly raised? Could the privacy argument nullify the entire CSA? What happens in principle when the commerce clause and the privacy right come in conflict? Is there any guiding principle here whatsoever?
1.14.2006 1:23am
unhyphenatedconservative (mail):
My name says it. I hate terms like "movement conservative" or neo-conservative or such nonsense. But I'm probably about as flame breathing a right wing charicature as you can get.

That said, Raich was decided wrongly. I support anti-drug laws but those should be made by the states, except for true cases of interstate commerce.

On the same token, I believe abortion is murder. However, outside of federal land/installations/etc., Congress has no power to make a gneral law forbidding murder, including abortion. I would vehemently oppose such efforts to ignore that limitation on the national government.
1.14.2006 1:28am
Defending the Indefensible:
Unhyphenatedconservative:

In your jurisprudence, may congress pass a mandate upon the state, and then tie funding of that mandate to state legislation over a subject which congress does not have direct authority to legislate?

(The national drinking age of 21 was set state-by-state through congressional withholding of highway funds from states which had set a lower age-limit.)

Assuming Roe were overturned, could it thus be constitutional for congress to require all states to make abortion illegal or forego federal medicare dollars?
1.14.2006 2:20am
Brett Bellmore (mail):

Assuming Roe were overturned, could it thus be constitutional for congress to require all states to make abortion illegal or forego federal medicare dollars?


Only if Medicare were constitutional, which it isn't. Unconstitutional programs are being leveraged to force states to comply with unconstitutional mandates.
1.14.2006 7:02am
Bottomfish (mail):
It seems clear that in dealing with abortion, as with other issues, conservatives need to educate the public about the distinction between state and federal spheres of power.
1.14.2006 10:51am
Defending the Indefensible:
Brett:

But until Medicare is challenged and overturned, along with every other mandate that the congress might be able to affix to the states with conditional funding, do you agree that if Roe were overturned congress could legislate as to compel states to criminalize abortion?
1.14.2006 11:34am
Defending the Indefensible:
Keeping things topical but relevant, Judge Alito indicated in his hearings that he has no problem with the Congress using federal funds to compel state legislation. (The drinking age / highway funds example was used.)
1.14.2006 11:37am
Just an Observer:
Grant Gould: "Abortion is either a federal issue via Roe or it's a federal issue via a federal ban; nobody apart from a few conlaw professors and federalists believes that abortion could stay very long at the state level."

I regret to say that your proposition is quite wrong as a political estimate. There is substantial support for abortion "rights" not only in the polls, but in Congress -- especially the Senate. There also is support for incremental regulation -- but certainly not a general "ban."

The federal Partial-Birth Abortion Ban of 2003 achieved passage, but it is far, far from a general ban on abortion. In fact, if the law is upheld by the Supreme Court this term, it will not prevent a single abortion! Consideration of the legislation in 2003 also produced a roll-call vote in the Senate (the Harkin amendment) in which a majority expressed its support for Roe v Wade.

Conversely, even if the Supreme Court allowed, pro-choice forces could not muster a majoritiy in both houses to enact a federal statute underwriting a right to abortion. It would take a fundamental shift in the House makeup to make that thinkable.

More likely is that in Congress, there could be no successful legislation that either prohibited or enabled abortion across-the-board. I do think there would be incremental efforts to restrict abortion at the federal level, and some such efforts would succeed. That would be consistent with the rough national polling consensus that seems to favor some threshhold availability of abortion, but with significant restrictions.

Overall, I think that if SCOTUS freed the legislatures to act, most of the action would be in statehouses. The results would be geographically diverse -- legal in New York, for example, and illegal in Mississippi. I believe that political outlook is widely held among knowledgeable activists on both sides, not just "a few conlaw professors and federalists" as you suggest.
1.14.2006 1:11pm
John Herbison (mail):
Judge Alito's claim that he has "an open mind" on whether Roe v. Wade should be overruled, when considered in light of his past advocacy of that decision being overruled, admits of two possibilities: (1) that Judge Alito is being, at best, disingenuous to the extreme, or (2) that Judge Alito is a more egregious flip-flopper than John Kerry ever dreamed of being. I thought that Rethuglicans claimed that flip-flopping is a bad thing.

My strong suspicion is that the judge's "open mind" is a shibboleth. Indeed, speculation that Harreit Meiers in fact had an open mind on this question that helped to abort her nomination.

The more plausible explanation is that Judge Alito lacked the candor to say, "I have made a deal with the dry-drunk-in-chief. He nominates me for life tenure on the highest court in the land, and I work like the dickens to overrule Roe v. Wade, provided that, when the issue eventually comes before the Supreme Court, Jenna and Barbara have by then gotten sober."
1.14.2006 1:23pm
Just an Observer:
John Herbison,

Your theory that Alito conspired with President Bush to overturn Roe v Wade assumes that Bush would favor such an outcome.

Both the public statements by Bush and the rather obvious reading of his political interests suggest that he does not favor overturning the precedent.

What is true is that it has been to the advantage of both men to avoid confronting the merits of the abortion issue forthrightly.
1.14.2006 1:33pm
Defending the Indefensible:
John Herbison,

What makes you think the President is still dry?
1.14.2006 1:49pm
jvarisco:
You are making the assumption that wanting to overturn Roe equals opposing a judge who would do so. You also assume that Alito would actually have that capability, which is not necessarily the case. I would imagine two polls, one suggesting Alito would vote to overturn Roe (but be in the minority) and another that he would be the deciding vote might come out differently.

Such polls are also problematic because they bias people against Alito - he has not indicated anywhere that he would overturn Roe, but at the very least people who read the poll will see it as a distinct possibility. Basing opinion of a nominee on their possible ruling to uphold or overturn a specific case is problematic in itself.
1.14.2006 2:52pm
Wintermute (www):
About the states' rights thing, there was a time when a woman just about had to go to Puerto Rico for an abortion. I know of no American colony, then state, that criminalized abortion (which has been around for a very long time) at the time of ratification of the Constitution. I'm most comfortable with recognizing a natural right under the 9th Amendment, incorporated against state government if you will by the 14th. If the Supremes want to call it part of a right to privacy, fine, if the result is to keep busybody government out of the decision of a free American. I'm a lot more worried about the epidemic of bastardy that the say no, feel guilty crowd has inspired in recent years.
1.14.2006 5:02pm
Fanoftheshow (mail):
A more intersting and useful poll would be directed at learning how many people actually understand what Roe says and the fact that overturning Roe returns the issue to the state legislature and doesn't make abortion illegal. I suspect that a large percentage of the 70% are ignorant about what overturing Roe would mean.
1.14.2006 7:51pm
Challenge:
This has probably already been said, but the two numbers are similar because the public mistakenly believes that overturning Roe equals making abortion illegal. It makes sense to the layman, if liberals created a right to abortion, conservatives would create a right of fetuses not to be aborted.

This confusion is amplified by the very poor reporting that Burgess notes in the NYT and elsewhere. Whether it is ignorance or intentional distortion, it's an excellent example of a failure of journalism.
1.15.2006 12:47am
Buck Turgidson (mail):
This is back to Eugene on the subject that has nothing to do with the poll directly, but that is brought up in the argumentation:

Eugene is flat out wrong concerning the implications of the decision. His assumption is that states may or may not make abortion illegal should the federal protection be removed. In fact, a number of states already MAKE ABORTION ILLEGAL but for the federal constitutional protection. The very second the federal protection is stripped, abortion becomes illegal in these states without so much as a state politician's aide lifting a pencil. So the net effect of any Supreme Court decision DOES make abortion illegal, irrespectively of the theoretical intent of the justices.

The issue is completely moot. Alito is a small mind singled out for his obsession with conservative ideology. He's not a particularly sharp legal mind, as other candidates would have been. He's not a strong constitutionalist--as the frequency of his opinion being found in the dust bin of minority or over-ruled decisions can attest. Worst of all, he is a man who will say absolutely anything to get a job--according not to some outspoken liberal critics, but to the man himself. He's an unprincipled liar, by his own admission. Why should we place such a person on the Supreme Court? The idea that his Princeton background and the length of his stay ont he bench qualify him for a promotion is equally absurd. There are plenty of judges with similar or better background and the fact that he's been stuck on the bench for so long may actually indicate that there is a good reason to keep him there. What's a good reason? See above.
1.15.2006 7:33am
Just an Observer:
Anyone who thinks that if pollsters would just ask the question right -- often suggesting a biased push-poll question of their own -- the public would turn out to oppose abortion "rights" is believing their own propaganda.

That stuff can be harmful or fatal if swallowed. Contact a physician immediately. Do not induce vomiting. Note: I am pro-life and anti_Roe. But I prefer not to delude myself about political facts.

A balanced poll question should mention the matter of letting states decide abortion's legality. But it also must include the core issue of a constitutional abortion "right," which is at the core of Roe. (See my own suggested version of the question in my post above.)

I have no doubt that even if the more nuanced question were asked, a substantial majority would support such a "right." That result would vary hugely across different states. Other questions already reveal that public public is confused, conflicted and self-contradictory in its attitude toward details of abortion. But I am sure that nationwide, a majority prefers to believe that such a "right" exists.
1.15.2006 11:01am
TruthInAdvertising:
"Why do you say that? Back before Roe, five states had substantially liberalized abortion."

Back in the 1970s, the pro-life movement had nowhere near the organization or power it does today. Once Alito helps to overrule Roe, I would expect to see pro-lifers open up a two-front attack on abortion. First, they would push for federal legislation to outlaw abortion-related activities both directly and indirectly via federal funding restrictions, as others have noted. Second, they would battle state-by-state to outlaw abortion or strictly curtail it where they couldn't achieve an outright ban. The end result would see abortion banned in most states, drastically restricted in some and generally unrestricted in only a few of the most liberal states. It would be interesting to see the legal hoops jumped through to justify overruling Roe while still maintaining the "privacy right" established in the cases preceding Roe. Would we return to a day when states are banning the sale of contraceptives?
1.15.2006 9:34pm